“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
“Too Late To Catch Him?”: Trump’s Remorseless Delegate Math Means Rubio and Cruz Are Screwed
The story of Donald Trump’s doomed campaign has been replaced by the story of his inevitability as the Republican nominee.
It’s a sea change indicative of his constant ability to defy expectations. He placed second in the nation’s first contest in Iowa, went on to dominate in New Hampshire and South Carolina, and won Nevada’s GOP caucus on Tuesday night.
But it’s not Trump’s past wins that foretell doom for any Republican candidate trying to stop this phenomenon. It’s the fact that a week out from Super Tuesday, Trump is the overwhelming favorite to win most of the remaining voting states—and their delegates—across the country. To clinch the nomination before the Republican convention, Trump needs 1,237 committed delegates. Before Nevada, he had 67 delegates, and Ted Cruz was in second place with 11.
Here’s how the math works.
On Super Tuesday alone, the only states that Trump currently risks losing, according to Real Clear Politics averages, are Arkansas and Texas. And both of those states have Cruz leading by surmountable percentages (note, though, that polling in both states is not always frequent or entirely current).
Even if Trump comes in second in Texas, he could still win.
Texas is a state that is typically proportional in its delegate allocation but has what the website Frontloading HQ calls a “trigger,” which creates a condition in which the state becomes winner-take-all. This would happen if a candidate wins a majority of the vote. Should this overwhelming victory not happen for Cruz, and, say, Trump comes in second in a proportional setting, the senator from Texas must cede a portion of the 155 delegates in play, thereby essentially handing the contest and the nomination to Trump. If Cruz can’t win his home state, he has little chance throughout the rest of the spring.
The Republican primary contest has long had what Sam Wang, a Princeton University professor and neuroscientist, refers to as a “deadline problem.” Wang, who runs the Princeton Election Consortium, posited on Feb. 11 that the Republican field needed to get smaller in a hurry, setting two specific deadlines to try to defeat Trump.
The first deadline is Feb. 29, at which point Wang thinks there need to be only two alternatives to Trump prior to March 1 voting. The second is March 14, when Wang thinks there can be only one other option besides Trump.
The issue is that many of the states leading up to March 8 fit the model of Trump’s South Carolina victory, in which he captured about a third of the vote but still managed to get all the delegates due to proportionality rules.
Even after Jeb Bush dropped out of the race following his defeat in South Carolina, Trump still faces four opponents before March 1. Marco Rubio, John Kasich, and Cruz will all try and see if they can win their respective home states (where all of them except Rubio are leading). Ben Carson has stubbornly stayed in the race despite finishing fourth at best in most states. But he could be out if his campaign contributions dry up in the coming weeks.
This means that unless everyone but Rubio and Cruz quits in the next week, Trump can’t be caught.
“Any talk of stopping Trump is highly unrealistic,” Wang told The Daily Beast. “Nearly all analysts, including data pundits, are blinded by the peculiarity of Trump’s campaign.”
Wang said he thinks Rubio has no chance of locking up the nomination anytime soon because the field is too divided for him to corral a lot of delegates by Super Tuesday. And if the senator loses his home state of Florida, which polling suggests he might, there isn’t enough time to make up the delegate difference before the Republican convention in July.
Josh Putnam, a political science professor at the University of Georgia who runs Frontloading HQ, told The Daily Beast that the only scenario that would allow a Trump defeat in the primary is a one-on-one matchup.
“If only Trump is winning, then no one can catch him in the delegate count,” Putnam said. “The only play in that scenario would be for opponents to either drop out or play to keep Trump under the 1,237 delegate majority needed to clinch the nomination on the first ballot at the national convention.”
One state that could slow Trump’s speeding train is Ohio, whose winner-take-all contest could keep him shy of the delegate count necessary to clinch the nomination. Trump sits atop the polls there, narrowly beating Buckeye Gov. Kasich.
Even in a situation in which Trump, Rubio, and Cruz are the last three standing, as conventional wisdom would suggest, the road still looks rocky for Cruz and Rubio. An Economist/YouGov poll taken last week showed Trump with 46 percent of the vote, Rubio with 28 percent, and Cruz with 26 percent. An earlier NBC/Wall Street Journal poll found Trump leading in the same circumstance.
Also, as saliently noted by Sahil Kapur in a Bloomberg Politics piece, as of January, Trump had a higher share of Republican voters who would consider voting for him than Mitt Romney had in 2012 around the same time. This suggests the mythic establishment lane has been almost entirely consumed by the singular Trump lane.
Rubio, the presumed second-place candidate at this point, cannot merely rely on absorbing Bush’s supporters either, as ideologically those supporters could just as easily go with Kasich as Rubio. In fact, the only way the Florida senator could catch the frontrunner is to siphon off some of Trump’s support, which seems unlikely. In a January NBC poll, 51 percent of Trump supporters said they were absolutely sure of their choice, while only 26 percent said the same for Rubio.
Wang says the question of Trump’s “ceiling” in terms of national polls is worthless. The real question is just how high his delegate count can go.
“Under Republican rules, it is possible to win a majority of delegates with as little as 30 percent of the vote, if conditions are right,” Wang said, using South Carolina, where Trump took all 50 delegates with only 33 percent of the vote, as an example. “That involves a split field, which is why I have been so focused on that. At Trump’s current level of support, about 35-40 percent, his delegate ceiling is above 50 percent,” meaning, according to Wang’s model, that even if Trump garners 35 percent of the popular support, he can still earn at least half of all the national delegates available.
As for Rubio, the blunt question is, what state can he win on Super Tuesday? He led by a small margin in Minnesota and could see an opening in Colorado. But otherwise his chances look bleak.
In the fantasy scenario where Rubio is viewed as a possible foil for Trump, is it possible to still be a viable contender if you don’t win a state before March 15?
As Nevada’s caucus began, Rubio was getting ready to test this hypothesis with a slew of new endorsements in hand. But in an election where facts don’t matter and Trump is drowning out the noise, it’s going to take more than an impressive posse to catch the frontrunner—as Tuesday night’s results showed.
By: Gideon Resnick, The Daily Beast, February 24, 2016
“Extremes Is All Our Politicians Have Left”: Without A Center, How Does The Nation’s Business Get Done?
“Things fall apart. The centre cannot hold.” — William Butler Yeats
And so this is the presidential campaign of 2016.
If it were a movie, it would be pornography. If it were a sporting event, it would be a cockfight. If it were music, it would be the sound of cats on a hot blackboard.
In other words, it has not been the most high-minded affair.
But beyond the fact that it has been ugly and dispiriting, the campaign has also come to feel … ominous, like a portent of some dystopian future. You wonder if maybe the superficial nastiness of it isn’t truly superficial at all, but rather, evidence of a grim new reality: that we are a nation of 323 million people in 50 states who not only are not united, but don’t particularly want to be.
It is hard to escape a sense that at some level, we have disengaged from one another and that as a result, our politics has shrunken to its extremes, like two boxers who retreat to neutral corners to yell across the ring.
Two men in particular embody this. The first, of course, is Donald Trump, who has channeled angry misanthropy into political power. The reality show impresario has pulled the Republican Party far to the right, using as his prod the inchoate, done-wrong, want-my-country-back rage of those for whom change is always, by definition, threat.
The second man is Bernie Sanders, who has channeled the angry populism of the political left into a movement that is no slouch for power itself. The Vermont senator has yanked the Democratic field — i.e., Hillary Clinton — far to the left, forcing her to compete for the affections of angry, tired-of-being-dumped-on 99 percenters who see democracy being stolen by Big Money and like it not at all.
Don’t misunderstand the point. Sanders has given voice to concerns too often ignored by Republicans and paid lip service to by Democrats. So the argument here is not that there is equivalence between the extremes of left and right. No, the argument — the observation, really — is that they are both, well … extremes. And that, apparently, that’s all our national politics has left.
It is instructive to watch Clinton and Sanders bicker about which is the more ideologically pure. Until recently, that kind of quarrel was restricted to Republicans jousting over who was most “conservative” — by which they meant draconian — on issues like immigration and abortion. Now, apparently, Democrats, too, want their candidates to pledge allegiance to philosophical dogma.
It raises a question: Whither the center? And if there is no center, how does the nation’s business get done? As ungovernable as the country has been under Barack Obama, a center-left pragmatist the Republicans made out to be the reincarnation of Che Guevara, it can only be worse under a leader whose ideological purity is zealously policed and for whom compromise is apostasy.
One struggles to even imagine what the fall campaign will be like. Usually, candidates argue over who has the best ideas for solving a given set of problems. But in neutral corners America, there is not even consensus on what the problems are. Will we have Trump campaigning on Mexicans and Muslims, while Sanders rails about money and malfeasance? Will we be asked only to decide which makes us most angry and afraid?
If so, whither hope?
And here, Democrats will want it noted that they were not the first to abandon the center. Let the record so state. The GOP eschewed all claim to that ground long ago and even purged itself of members who dared wander too close.
Still, the question of who is to blame for a politics of extremism is less compelling than the question of what that politics portends. Two boxers yelling at one another from neutral corners makes for great theater.
But the fighting is done in the center of the ring.
By: Leonard Pitts, Jr., Columnist for The Miami Herald; Then National Memo, February 22, 2016
“Varieties Of Voodoo”: Undermining The Credibility Of The Progressive Economic Agenda
America’s two big political parties are very different from each other, and one difference involves the willingness to indulge economic fantasies.
Republicans routinely engage in deep voodoo, making outlandish claims about the positive effects of tax cuts for the rich. Democrats tend to be cautious and careful about promising too much, as illustrated most recently by the way Obamacare, which conservatives insisted would be a budget-buster, actually ended up being significantly cheaper than projected.
But is all that about to change?
On Wednesday four former Democratic chairmen and chairwomen of the president’s Council of Economic Advisers — three who served under Barack Obama, one who served under Bill Clinton — released a stinging open letter to Bernie Sanders and Gerald Friedman, a University of Massachusetts professor who has been a major source of the Sanders campaign’s numbers. The economists called out the campaign for citing “extreme claims” by Mr. Friedman that “exceed even the most grandiose predictions by Republicans” and could “undermine the credibility of the progressive economic agenda.”
That’s harsh. But it’s harsh for a reason.
The claims the economists are talking about come from Mr. Friedman’s analysis of the Sanders economic program. The good news is that this isn’t the campaign’s official assessment; the bad news is that the Friedman analysis has been highly praised by campaign officials.
And the analysis is really something. The Republican candidates have been widely and rightly mocked for their escalating claims that they can achieve incredible economic growth, starting with Jeb Bush’s promise to double growth to 4 percent and heading up from there. But Mr. Friedman outdoes the G.O.P. by claiming that the Sanders plan would produce 5.3 percent growth a year over the next decade.
Even more telling, I’d argue, is Mr. Friedman’s jobs projection, which has the employed share of American adults soaring all the way back to what it was in 2000. That may sound possible — until you remember that by 2026 more than a quarter of U.S. adults over 20 will be 65 and older, compared with 17 percent in 2000.
Sorry, but there’s just no way to justify this stuff. For wonks like me, it is, frankly, horrifying.
Still, these are numbers on a program that Mr. Sanders, even if he made it to the White House, would have little chance of enacting. So do they matter?
Unfortunately, the answer is yes, for several reasons.
One is that, as the economists warn, fuzzy math from the left would make it impossible to effectively criticize conservative voodoo.
Beyond that, this controversy is an indication of a campaign, and perhaps a candidate, not ready for prime time. These claims for the Sanders program aren’t just implausible, they’re embarrassing to anyone remotely familiar with economic history (which says that raising long-run growth is very hard) and changing demography. They should have set alarm bells ringing, but obviously didn’t.
Mr. Sanders is calling for a large expansion of the U.S. social safety net, which is something I would like to see, too. But the problem with such a move is that it would probably create many losers as well as winners — a substantial number of Americans, mainly in the upper middle class, who would end up paying more in additional taxes than they would gain in enhanced benefits.
By endorsing outlandish economic claims, the Sanders campaign is basically signaling that it doesn’t believe its program can be sold on the merits, that it has to invoke a growth miracle to minimize the downsides of its vision. It is, in effect, confirming its critics’ worst suspicions.
What happens now? In the past, the Sanders campaign has responded to critiques by impugning the motives of the critics. But the authors of the critical letter that came out on Wednesday aren’t just important economists, they’re important figures in the progressive movement.
For example, Alan Krueger is one of the founders of modern research on minimum wages, which shows that moderate increases in the minimum don’t cause major job loss. Christina Romer was a strong advocate for stimulus during her time in the White House, and a major figure in the pushback against austerity in the years that followed.
The point is that if you dismiss the likes of Mr. Krueger or Ms. Romer as Hillary shills or compromised members of the “establishment,” you’re excommunicating most of the policy experts who should be your allies.
So Mr. Sanders really needs to crack down on his campaign’s instinct to lash out. More than that, he needs to disassociate himself from voodoo of the left — not just because of the political risks, but because getting real is or ought to be a core progressive value.
By: Paul Krugman, Op-Ed Columnist, The New York Times, February 19, 2016
“Conservatives Are Right To Be Frightened”: Don’t Believe The Hype: Here’s What A Liberal Supreme Court Would Actually Do
If you look at how the Democratic and Republican candidates for president have reacted to the Supreme Court vacancy created by the death of Antonin Scalia, you might notice a greater sense of urgency from the Republicans. The Democrats are certainly talking about it, and they’ve certainly expressed their contempt at the absurd arguments Republicans are making in support of their position that the president of the United States shouldn’t be allowed to appoint Supreme Court justices if a new president will take office in a year. But they aren’t spinning out nightmare scenarios about what will happen if they lose this conflict. The Republicans, on the other hand, seem much more worried.
And they’re right to be, because at the moment, they have more to lose. But what would actually happen if the balance on the Court shifts from 5-4 in favor of conservatives (what it was before Scalia’s death) to 5-4 in favor of liberals?
To hear Republicans tell it, the results would be positively apocalyptic. Here’s how Ted Cruz described it in a CNN town hall last night:
“We are one liberal justice away from the Supreme Court striking down every restriction on abortion that’s been put in place the last 40 years. We are one liberal justice away from the Supreme Court writing the Second Amendment out of the Constitution. We are one liberal justice away from the Supreme Court ordering Ten Commandments monuments to be torn down, ordering veterans memorials to be torn down, and undermining our fundamental religious liberty.”
This is almost verbatim what Cruz has been saying since Scalia died; on Meet the Press last Sunday, he added colorfully that a liberal majority would mean “the crosses and Stars of David sandblasted off of the tombstones of our fallen veterans.”
There’s no doubt that if and when a new liberal justice takes his or her seat on the Court — either because Obama’s nominee somehow gets confirmed or because Hillary Clinton or Bernie Sanders wins the election and appoints one — it will be the most significant shift in the Court’s balance in decades. And that’s in large part because the right has gotten so much of what it wanted out of this Supreme Court. While conservatives shake their fists at the Court and call John Roberts a traitor, the truth is that with just a few exceptions, most notably the legalizing of same-sex marriage and the upholding of (most of) the Affordable Care Act, the Roberts Court has delivered the right a spectacular string of victories over the last few years. Among other things, they found an individual right to own guns for the first time in history, knocked down limits on spending by corporations (and unions) on political campaigns, whittled away at affirmative action, gutted the Voting Rights Act, made it harder for employees to sue for sex discrimination, and declared that corporations have religious rights.
Nevertheless, according to the Pew Research Center, in 2008, 80 percent of Republicans had a favorable view of the Supreme Court. By 2015 that figure had fallen to 33 percent. And 68 percent of conservative Republicans described the Court as “liberal,” which is laughable by any standard one could devise.
So what happens now? Margo Schlanger compiled this list of major rulings where Scalia was in a 5-4 majority, all of which could in theory be overturned, from Citizens United to D.C. v. Heller (which established the individual right to own guns) to Shelby County v. Holder (which invalidated key parts of the Voting Rights Act). But that doesn’t mean a liberal majority would go on a rampage, overturning all those settled cases.
“The Supreme Court is a conservative institution as a whole; justices aren’t looking to overturn the apple cart,” Jill Dash of the liberal American Constitution Society told me this morning. She argued that it’s unlikely that a liberal majority would set about to repeal those high-profile decisions, particularly within the first few years of that majority.
Samuel Bagenstos, a professor at the University of Michigan law school who served in the Justice Department under President Obama, also doubts that there would be too many major decisions overturned. “The four more liberal justices currently on the Court take precedent and stare decisis seriously, and I don’t think that will change,” he said.
But there would be change in complex areas of law where the courts are still working through how previous decisions apply to varied situations. Affirmative action is one “where the Court would be much more likely to uphold programs designed to promote diversity in schools and the workplace,” Bagenstos says. He also points to employment law as an area where a liberal majority could chart a new path, in cases concerning arbitration clauses in contracts and what constitutes systemic discrimination. Dash notes that a liberal majority would probably produce a spate of voting rights cases, as challenges to restrictions imposed by Republican state legislatures would find a friendlier hearing, even if Shelby County isn’t entirely overturned.
And then there’s abortion, always at the top of everyone’s mind when the Supreme Court comes up. In recent years, conservative states have pushed the envelope farther and farther in restricting the availability of abortion, with onerous rules on abortion clinics and invasive mandates on the women seeking the procedure. The question is which of these measures violate the Court’s 1992 ruling in Planned Parenthood v. Casey, which stated that the government can’t impose an “undue burden” on a woman’s right to choose.
The conservative position to this point has been that virtually no burden is “undue.” If the state makes you drive hundreds of miles, wait for days, make multiple visits to a clinic, hear an oration of lies penned by some GOP state legislator about how getting an abortion might give you cancer and drive you mad, so far the Supreme Court has said it’s just what women should have to tolerate.
But that might no longer be true. “A liberal who replaced Justice Scalia would likely read the Casey ‘undue burden’ standard as imposing a much more significant limitation on the regulation of abortion than the Court has in recent years,” says Bagenstos, “so you could see a major practical shift in reproductive rights jurisprudence. I don’t think the Court would overrule any precedent, though. It would just find a wider range of burdens to be ‘undue.’”
In short, a liberal replacing Scalia would be an important change with profound consequences for all Americans’ lives. But it wouldn’t happen all at once, and it wouldn’t be so earth-shattering as to cause riots in the streets. Nobody’s going to sandblast the crosses off the gravestones at Arlington. Nevertheless, conservatives are right to be frightened. They’ve had a long run with conservative dominance of the Supreme Court, and it may be coming to an end. Now they’ll understand how liberals have felt for the last few decades.
By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, February 18, 2016
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