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“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

March 20, 2016 Posted by | Merrick Garland, Mitch Mc Connell, Senate Republicans, U. S. Supreme Court Nominees | , , , , , , , | 2 Comments

“Republicans Still Love Gitmo”: Don’t Want To Admit They Were Wrong To Support The Cuban Prison In The First Place

The Republicans have a strange emotional attachment to keeping the prison at Guantanamo Bay open for the foreseeable future. As an explanation, I kind of discount actual fear that the inmates might escape from a super maximum security prison in the United States. I know they fan that fear whenever the subject of closing Gitmo comes up, but I believe this is just a tactic.

Maybe they just don’t want to admit that they were wrong to support the Cuban prison in the first place. That certainly seems to animate the most vocal opponents who also are the most notorious neoconservative members of the Senate.

Take a look at how they’re responding to the administration’s just-announced plan to close the notorious facility:

Senator John McCain, the Arizona Republican who chairs the armed services committee, all but rejected a plan he himself has urged the administration to submit. McCain has shifted his positions on Guantánamo from the Bush to the Obama administrations, but has positioned himself as the last gasp of Obama’s ambitions to win congressional support.

McCain, while pledging to look at the plan in hearings, termed it “a vague menu of options, not a credible plan for closing Guantánamo, let alone a coherent policy to deal with future terrorist detainees,” and said Obama had “missed a major chance”.

Senator Kelly Ayotte, a New Hampshire Republican on the armed services committee, preemptively rejected the final proposal in a statement.

“The president is doubling down on a dangerous plan to close Guantánamo – a move that I will continue to fight in the Senate,” Ayotte said.

Senator Tom Cotton, the Arkansas Republican and war veteran, dismissed the plan as a “political exercise”. Cotton, a rising star in GOP national security circles, received significant media attention for declaring Guantánamo detainees “can rot in hell” last year.

Then there’s Marco Rubio, who is already criticizing the plan on the campaign trail, saying that not only shouldn’t the prison close, but we should never give the property at Gitmo back to a “communist dictatorship.”

I don’t expect Congress to act on the president’s plan. Maybe Obama will act after the November election when he’s truly a lame duck. What are they gonna do? Impeach him?

 

By: Martin Longman, Political Animal Blog, The Washington Monthly, February 23, 2016

February 24, 2016 Posted by | GITMO, Republicans, Terrorists | , , , , , , | Leave a comment

“The Logical Move Is To Make A Deal”: What Republicans Risk By Obstructing Obama’s Supreme Court Nomination

Conventional wisdom states that Republicans have every political reason to block anyone President Obama nominates for the Supreme Court.

Any Republican who voted for an Obama nominee could face a primary challenge. The people who care most about judicial battles are ideological base voters, so swing voters in a general election wouldn’t blame one party over the other. And if a Republican wins the presidency, then Senate Republicans would confirm a conservative, while if a Democrat wins, the person’s nominee would be no different from an Obama nominee. Nothing lost by holding out.

But there are reasons to question all of these assumptions.

First, the immediate electoral risk for Republicans is in the general election, not the primary.

There are 21 incumbent Senate Republicans up for re-election in 2016. (Three other Republican incumbents are retiring from the Senate.) Six of them, five of which are in “blue” states, are rated as “toss-up” or “lean Republican” (as opposed to “likely” or “solid” Republican) by the Cook Political Report.

These six – Sens. Kelly Ayotte (N.H.), Ron Johnson (Wis.), Rob Portman (Ohio), Mark Kirk (Ill.), Pat Toomey (Pa.), Richard Burr (N.C.) – were all elected to their first terms in the Tea Party-infused 2010 midterm. This time, they will be running in a presidential year in which Democratic turnout will be higher.

Kirk, Portman, Toomey and Burr have primary challengers. But none have gained traction yet, and the primaries for most are soon – all in March except for Toomey’s in late April. Any vote on a court nominee would likely come after that.

(The one probably worried the most about a primary challenge is New Hampshire’s Ayotte; her primary is not until September, the filing deadline is June and Trump’s presidential primary win showed an unruly anti-establishment GOP electorate.)

For the other 15 “safe” Republicans up for re-election, several face nominal primary challenges, 10 of them in June or later. These folks won’t want to take any unnecessary political risks.

That leaves 30 Republicans who don’t face any immediate electoral pressures.

They may have a reason to worry about future primaries; political scientist Dave Hopkins noted that longtime Sen. Dick Lugar was ousted in the 2012 primary after voting for Obama nominees in 2009 and 2010. But those were votes for nominees that were considered to be “liberal” picks. The political dynamic around a pick widely deemed to be a centrist would be an entirely different ballgame.

That brings us to the second assumption: only base voters care about judges.

It’s an understandable assumption. It has been true when we’ve had Senate scrums over lower court judges. It has been true when voices on one side of the spectrum futilely try to rally opposition to a judge on the other side. (Contemporaneous polls showed little public interest in the epic 1991 Clarence Thomas and 1987 Robert Bork battles, not to mention the less-remembered 2005 conservative kneecapping of Harriet Miers.)

But none of those episodes happened in the middle of a presidential election.

In fact, SCOTUSBlog checked the record going to back to 1900, and found no instance of a Supreme Court seat left vacant on Election Day. If Republicans refuse to approve anybody by November, we will be in a truly unprecedented situation.

The public won’t tune out of the judicial battle because a presidential election season is the one time when most people tune in. And no matter who Obama picks, barring a poor vet and unexpected scandal, Republicans will be on the losing side of the argument.

Obama is highly unlikely to pick a left-wing version of a Bork. He would either pick someone in the “mainstream liberal” mold of Sonia Sotomayor or Elana Kagan, or he would offer a compromise choice, a centrist swing vote – perhaps negotiated with some Senate Republicans – putting the Supreme Court in perfect ideological balance.

Either direction squeezes obstructionist Republicans.

Republicans would have a relatively easier time resisting a mainstream liberal, or more accurately, it would be a bigger risk for individual Republicans to cross the aisle and vote for a mainstream liberal. That could be used against a Republican in a primary this year or beyond.

Nevertheless, a general electorate majority would embrace a mainstream liberal since he or she would uphold rights that are widely embraced, including abortion rights under Roe v. Wade and equal rights for gay people. Putting those hot-button social issues on the line for Election Day is an clear-cut loser for Republicans. Not only would Republicans be more likely to lose the presidency, they would also be more likely to lose the Senate.

Naming an undisputed non-ideological judge would put Republicans in an even worse political bind. A nominee showered with praise from the legal establishment as an eminently qualified straight-shooter would isolate Republicans as hostages to ideological extremists. They would not be able to claim that they were protecting the court from a dramatic ideological shift; they would be exposed as holding out for their own ideological comrade at the expense of good governance.

And that brings us to the final assumption: that Republicans lose nothing by holding out. On the contrary, they could lose everything.

As it stands, Republicans have the ability to bargain with Obama and win that compromise pick, ticking the court a half-step leftward into exact ideological balance.

By refusing to bargain, Republicans weaken their general election prospects for both the White House and Senate. If Democrats take both, they could install a young liberal – as well as replace older liberals Ruth Bader Ginsberg and Stephen Breyer – and create a five-person Court majority that would rule for a generation.

Seeing the madness that is the Republican presidential primary, one could see why the Republican Party’s first instinct is to reflexively obstruct. But after making a cold calculation, clear-headed Republicans will see that the logical move is to make a deal.

The only question remains: How many clear-headed Republicans are left in the Senate?

 

By: Bill Scher, Campaign for America’s Future, OurFuture.org; February 17, 2016

February 22, 2016 Posted by | GOP Base, Senate Republicans, U. S. Supreme Court Nominees | , , , , , , , | 1 Comment

“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

February 14, 2016 Posted by | GOP, Mitch Mc Connell, Senate Republicans, U. S. Supreme Court | , , , , , , , , , , , | 4 Comments

“The Bane Of Many Politicians’ Existence”: Senate GOP Solution To Super PAC Rivals; More Money In Politics

This may sound odd, but it rings true amongst Republicans and Democrats alike: The only people who loathe Super PACs more than voters forced to sit through an onslaught of their bullshit ads, are politicians themselves.

Don’t get me wrong, at first many Republicans loved the new, post-Citizen United world of PACs (a.k.a. Political Action Committees who act any way they want). But those powerful outside groups have become the bane of many politicians’ existence—even GOP lawmakers who oppose overturning the Supreme Court ruling.

“We’re at a point where the outside groups have so much more flexibility than the parties do that there’s nothing wrong with giving both political parties a little more flexibility in how they work with candidates,” said Roy Blunt (R-MO), a member of the GOP leadership team in the Senate.

As Congress scrambles to avoid a year end government shutdown, Senate Majority Leader Mitch McConnell is quietly trying to include a provision to dismantle any limitations remaining on what the parties in Washington can spend coordinating with their candidates. Both parties bemoan that their candidates have lost control of their own campaigns.

Currently GOP and Democratic leaders can only spend about $50,000 to assist House candidates and around $3 million working with Senate campaigns. But for Super PACs the sky is the limit on what they can raise and spend, thus neutering the parties and politicians alike.

“You notice that the political parties are now being shunted aside, because he who pays the pipers calls the tune,” said Sen. Bill Nelson (D-Fla.) who doesn’t think McConnell’s latest attempt is all that significant. “It’s the outside money, particularly in the Republican sphere, that is funding elections. And it’s all this undisclosed, unlimited money uncontrolled by the campaign finance law. So until we can stop the outside money you can tinker here and tinker there, and it doesn’t make any difference.”

PACs have complicated everything for today’s political class. Yes, candidates are still the central component of any campaign, but all the campaign cash has eclipsed many candidates’ messages in recent elections. That’s because it’s easier for PACs to rake in millions than it is for candidates and their party to take in similar rolls of dollar bills. Candidates and parties also have to play by different rules.

“The candidates we have to disclose everything and I have to put my name on it,” Sen. Kelly Ayotte (R-NH) told The Daily Beast. She’s facing a bruising reelection battle and thinks the Citizens United ruling has unleashed a double standard.

“The parties also, they have to say ‘from the party’ and be able to do that, but you know there are a lot of outside groups, they have different names and it’s tough to know where they’re coming from.”

While candidates want to exert more control over their own campaigns, so do party leaders. In recent years Tea Party challengers have embarrassed themselves and the Republican Party in Senate races from Delaware to Nevada. That made the GOP establishment bristle, and seems to be behind McConnell’s latest move to strengthen the parties.

“McConnell is a party man,” said Kyle Kondik, a campaign analyst at the University of Virginia’s Center for Politics. “He probably believes that if the parties are stronger they can exert more control over who gets the nomination. You make the party stronger the individual candidates get weaker.”

That’s why the Tea Party wing of the GOP is opposed to McConnell’s latest move.

Rep. Jim Jordan (R-Ohio), the head of the House Freedom Caucus, said the changes on coordination should also be extended to Super PACs who currently are forbidden from coordinating with campaigns.

“What’s good for the goose should be good for the gander,” Jordan told The Daily Beast. “So if it’s good for the parties, it should be good for outside groups who are involved in politics and have a big influence on politics as well. I mean free speech is free speech. So either don’t do it at all, or if you’re going to do it, do it in an equal fashion.”

This isn’t the first time McConnell has stealthily tried to unwind election law. As the legislative clock wound down at the end of last year, he worked with then Speaker John Boehner to lift the cap on what party committees could solicit from donors. The provision hiked the rate from just under $100,000 to nearly $800,000. It was barely noticed, but critics argue the new provision will be felt.

“It will basically turn the parties into another apparatus that’s owned by the big money crowd,” said Rep. John Sarbanes (D-Md.), an advocate for public financing of campaigns. “In a sense it would allow big donors to become benefactors of specific candidates, using the parties to do it. They would kind of go through the parties to become the sugar daddy of this candidate or that candidate. So the parties lose all independence; they just become the tool of the big money crowd.”

Then there’s the whole presidential scramble going on. South Carolina Sen. Lindsey Graham has proven to be a lackluster fundraiser in his #YOLOrace for the White House, but that doesn’t mean he hasn’t been carefully watching his opponents and their Super PACs. He predicts something will give when the new Congress convenes at the start of 2017.

“I think there is going to be a scandal about money coming in the 2016 cycle from unsavory sources,” Graham to The Daily Beast. “That’s what it’s going to take to spur discussion. So I don’t really care about moving the caps as long as it’s transparent.”

 

By; Matt Laslo, The Daily Beast, December 14, 2015

December 15, 2015 Posted by | Campaign Financing, Citizens United, Mitch Mc Connell, Super PAC's | , , , , , , , | Leave a comment

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