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“Jim DeMint Looking Over His Shoulder”: Trump Made A Big Promise Aimed At Winning Over Nervous Conservatives

It sort of got lost in competing news about his efforts to seem a mite more normal now that he’s almost certain to head to Cleveland in July as the leader in delegates, if not the putative nominee, but Donald Trump made a very unusual and highly significant promise aimed right at the beating heart of movement conservatism:

Speaking at the construction site for his new hotel in Washington, D.C., Monday, Trump said he will make a list public in the next week of 10 conservative judges that he would consider nominating to the Supreme Court. If elected, Trump said, he would only pick from that list, which is being made in consultation with the conservative Heritage Foundation.

He first made that promise over the weekend in Florida, and he seems to want to make sure it’s widely heard. This means somebody is giving him good advice about how to address the concerns of conservatives about his ideological reliability.

Of all the things they fear about a President Trump, the most urgent is that he will throw away a once-in-a-generation opportunity to reshape SCOTUS and constitutional law. And of all the temptations they have to hold their noses and support the man despite all of his heresies and erratic behavior, the most powerful would be the confident belief that at least he would position the Court to overrule Roe v. Wade, protect Citizens United, overturn Obama’s executive orders, eviscerate regulation of businesses, inoculate religion-based discrimination, and maybe even introduce a new Lochner era of constitutionally enshrined property rights. This would be a legacy that might well outweigh the risks associated with a Trump presidency.

Promising to make his SCOTUS list public right now is smart, because otherwise it’s an empty promise, and involving the Heritage Foundation in developing it is key to its credibility. Not only has Heritage had a long history of vetting Republican appointees; its current president, Jim DeMint, is arguably the most reliable of “constitutional conservatives,” a man who believes conservative policy prescriptions ought to be permanently protected from the occasional liberal majority via a divinely inspired and unchanging Supreme Law.

Bonding with conservatives over SCOTUS makes some psychological sense for Trump as well. Nothing symbolizes the betrayal of the conservative rank and file — whose abiding exemplar is arguably the humble anti-choice activist staffing phone banks and licking envelopes to protect the unborn from “baby-killers” — by those GOP elites in Washington better than the long string of Republican SCOTUS appointees who have turned out to be traitors to the Cause, from Roe v. Wade author Harry Blackmun to the generally liberal John Paul Stevens and David Souter to the current Obamacare-protecting chief justice. If Trump can break that pattern with Jim DeMint looking over his shoulder, maybe he won’t be that bad for conservatism after all.

 

By: Ed Kilgore, Daily Intelligencer, New York Magazine, March 22, 2016

March 23, 2016 Posted by | Conservatism, Donald Trump, Jim DeMint, U. S. Supreme Court Nominees | , , , , , , , | Leave a comment

“Secretly On The Ballot In November”: The Future Of The ‘Nuclear Option’ For Supreme Court Nominees

After the initial intense focus on President Obama’s determination to nominate a successor to Antonin Scalia and Senate Republicans’ determination to block him, it’s beginning to sink in that the struggle for control of the Supreme Court could be a complicated and drawn-out battle. As Juliet Eilperin and Robert Barnes of the Washington Post point out today, the next president could have more than one chance to appoint a justice, and both conservatives and liberals understand the stakes could be huge:

The Scalia vacancy technically gives Obama the chance to establish a liberal majority on the court for the first time in decades, but even if he manages to seat a new justice in the face of blanket GOP opposition, the victory could be fleeting …

Scalia’s death at age 79 shows the peril of making predictions about the Court’s future, but the age range among the current justices would suggest that a Republican successor to Obama could have greater impact on remaking the court than a Democrat, especially if Scalia’s seat stays vacant into the next administration. Simply put, the court’s liberal bloc is older and may offer more opportunities for replacement.

When the new president is inaugurated, Associate Justice Ruth Bader Ginsburg will be almost 84. Anthony Kennedy will be 80 and Stephen Breyer, 78. Replacing Ginsburg and Breyer, both appointees of President Clinton, with conservatives would instantly shift the court’s balance for years, even if an Obama’s appointee were to replace Scalia. (The next oldest justice is Thomas, who was nominated by George H.W. Bush and will be 68 this summer.)

Many conservatives, of course, hate Kennedy, too; he was the swing vote in upholding Roe v. Wade in 1992, and played a key role in the Court’s marriage-equality decisions.

But more fundamentally, partisan polarization and gridlock in Congress has significantly elevated the importance of non-legislative entities, including the federal courts and executive-branch agencies whose power the courts might choose to expand or restrain.  So control of the commanding heights of the Supreme Court is more important than ever.

What complicates the issue is the precedent set by Senate Democrats under Harry Reid in 2011 (Republicans had come close to taking the same action in 2005): the so-called “nuclear option,” removing the right to filibuster executive branch and non-SCOTUS judicial appointments. With both parties in the Senate steadily retreating from the ancient practice of deferring to the president’s choices for the High Court, and with the hot-button issues facing SCOTUS making “compromise” choices less feasible, the difference between having to muster 50 and 60 Senate votes to confirm a presidential nomination is increasingly momentous.  And for that reason, if either party wins both the White House and the Senate this November, going “nuclear” on SCOTUS appointments by getting rid of the filibuster is a very high probability (and even if it doesn’t happen, the threat of “going nuclear” can and will be used to force the minority party to be reasonable).

But the converse situation is worth pondering, too. If, to cite a lively possibility, Democrats hang onto the White House while Republicans hang onto the Senate, there is no way the Senate invokes the “nuclear option.”  Senate resistance to a progressive justice would likely stiffen in 2018, when Republicans will enjoy one of the most favorable Senate landscapes in memory. 25 of 33 Senate seats up that year are currently Democratic, including five in states Obama lost twice.  Add in the recent GOP advantage in the kind of voters most likely to participate in midterm elections, and the ancient tendency of midterm voters to punish the party controlling the White House, and the odds of a Democratic president being able to impose her or his will on the Senate on crucial SCOTUS nominations between 2019 and 2021 is very slim.

If Democrats want to shape the Court’s future, they’d do well not only to win the White House but to take back the Senate this November, and get rid of the SCOTUS filibuster in hopes that restoring it will be too controversial for Republicans even if they reconquer the Senate in 2018. By then, of course, Senate Republicans may be looking forward to their own ability to shape the Court after 2020 if they win back the presidency then. It’s going to be a chess game with big and continuing arguments over the rules.

 

By: Ed Kilgore, Daily Intelligencer, New York Magazine, February 29, 2016

March 1, 2016 Posted by | Democrats, Filibuster, Republicans, U. S. Supreme Court Nominees | , , , , , , , , | 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

“The Electability Conundrum”: Scalia’s Death Only Reinforces The Need For Democrats To Choose Their Nominee Wisely

The death of Antonin Scalia has brought home two truths about the presidential race to voters in both parties. First, there may be no more important issue in the campaign than the Supreme Court (which some of us have been saying for some time). And second, if that’s true, then there may be no more important criterion in picking your party’s nominee than who has the best chance of winning in November.

Unfortunately, electability is a difficult thing to predict, no matter how much you know about politics. During the 2008 primaries, for instance, many intelligent Democrats believed there was no way that the voting public would ever elect an African American with a name like “Barack Hussein Obama.” Four years before, many Democrats thought that John Kerry was the most electable Democrat because Republicans couldn’t possibly attack the patriotism of a war hero, especially with a couple of draft-dodgers like George W. Bush and Dick Cheney at the top of their ticket. Neither of those assessments turned out to be correct.

Nevertheless, it’s an impossible question for partisans to ignore, given the stakes of the election. And just how high are they? Someone (usually someone running for president) will always say “This is the most important election of my lifetime,” and it’s easy to dismiss. After all, no matter what happens, the republic will survive. If you’re a Democrat, you can console yourself with the fact that it survived Ronald Reagan and George W. Bush, as much damage as they might have done; if you’re a Republican you can say the same about Bill Clinton and Barack Obama.

Nevertheless, there are some reasons why this election could be particularly consequential, particularly for Democrats. The first is the Supreme Court, and Scalia’s passing is only part of that story. When the next president is sworn in, Ruth Bader Ginsburg will be 83, Anthony Kennedy will be 80, and Stephen Breyer will be 80. What if Republicans succeed in keeping President Obama from seating a replacement, then a Republican is elected, and some or all of those three fall ill or retire? You could have a Court made up of seven relatively young conservative justices and only two liberals, Sonia Sotomayor and Elena Kagan. The days of liberals losing cases by a 5-4 margin would be but a happy memory, and the overturning of Roe v. Wade, the end of affirmative action, and the crushing of labor union rights would be only the beginning of a judicial scorched-earth campaign that would not only lay waste to rights liberals hold dear, but would keep doing so for decades to come.

And then there’s the matter of what a Republican president would be able to accomplish through legislation. If the GOP nominee wins in November, it will almost certainly also mean that Republicans have held on to the House and the Senate. That president might or not not be a radical conservative, though Donald Trump looks like the only contender with a chance who couldn’t be described that way. But Congress certainly will be radical. The Republican Party has been moving sharply to the right in recent years, and with unified control for the first time in a decade, it’s safe to say they will pretty much go nuts. Repealing the Affordable Care Act, slashing upper-income taxes, gutting the safety net, rolling back environmental regulations, passing federal restrictions on abortion—if it’s in any Republican’s fantasies, it’ll be able to pass through both houses and get signed by the president. And don’t think Democrats having the filibuster will stop that train; given the respect Republicans have shown for norms and traditions, do you think they’ll let that stand in their way?

So if you think electability ought to be part of your calculation, what do you need to consider? The Democratic primary makes it a little easier because there are only two candidates, but it’s still complicated. Here are the variables to consider:

  1. The reward to be gained from a Bernie Sanders presidency
  2. The reward to be gained from a Hillary Clinton presidency
  3. The chances of Sanders winning in November if he’s the nominee
  4. The chances of Clinton winning if she’s the nominee
  5. The consequences of a Republican victory in November

That’s not to mention how each Democrat would match up against any given Republican, which introduces another dimension of complexity. But here’s the basic calculation you have to make: Figure out whether, for your preferences, (1) is larger than (2) or vice-versa, and by how much; then figure out whether (3) or (4) is larger, and by how much; then weigh both of those figures against (5).

For instance, you might decide that Bernie Sanders’s presidency would be superior to Hillary Clinton’s, but Clinton has a higher chance of winning in November, and since a Republican presidency would be so dreadful, you’ll support Clinton even though you like Sanders better. Or you might decide that a Sanders presidency would be so good that even if Clinton might have a slightly better chance in November, it’s worth some measure of risk in nominating Sanders because the reward of him winning is so high.

The truth, of course, is that because we aren’t rational people we constantly construct post-hoc justifications for the choices we make. In this case, that means we’ll convince ourselves that whichever candidate we prefer is also the more electable one. While it might seem logical that Clinton has a higher chance of winning a general election than Sanders, I’ve yet to encounter a Sanders supporter who actually thinks so. They say that Clinton has her own electability problems (undoubtedly true), and that Sanders will bring in so many new voters that it will overcome the effect of the attacks Republicans will launch on him for his leftist views. Clinton supporters, on the other hand, find this argument laughable; they’ll tell you that Republicans will positively disembowel Sanders, and by the time they’re done with him he’ll seem like he’s too much of an extremist to get elected to the Burlington City Council.

I’ve also found that Sanders supporters are more likely to minimize the negative consequences of a Republican presidency. That might be because they don’t see as much of a difference between Clinton and the Republicans, but it’s also because they’re focused on the first variable, the potential rewards of a Sanders presidency. Clinton supporters, on the other hand, have no sweeping expectations from their candidate; for them, staving off disaster is more than enough reason to support her.

Even if your heart goes aflutter at Sanders’s mention of things like single-payer health care and free public college tuition, you’d have to grant that achieving those goals is anything but guaranteed even if he wins the White House. And most of what he would do doesn’t differ from what Clinton would do. That’s particularly true of the Supreme Court: Any Democratic president who had a chance to name a new justice would be choosing from the same pool of liberal jurists now serving in federal appeals courts or perhaps a few state supreme courts.

But even if you find the substantive differences between Clinton and Sanders to be enormous, it’s hard to see them as actually being bigger than the difference between them on one hand and the tsunami of change that will occur if a Republican is elected on the other. Which leaves Democratic voters with no choice but think hard about which candidate is more electable—even if there are no perfect answers to the question.

 

By: Paul Waldman, Senior Writer, The American Prospect, February 15, 2016

February 16, 2016 Posted by | Bernie Sanders, Democratic Presidential Primaries, Electability, Hillary Clinton, U. S. Supreme Court | , , , , , , , , , | 2 Comments

“When Is It Okay To Exploit Fear?”: Deliberately Increasing People’s Sense Of Insecurity To Make Them Vote For You

When I saw that President Obama had remote-psychoanalyzed Trump voters, I knew that the right would go crazy and say that it reminded them of his infamous bitter-clinger comments from 2008. At this point, it’s Pavlovian. What I saw from right-wing blogger Tom Maguire was a little unexpected, however.

He took a screenshot of the New York Times headline, which read: Obama Accuses Trump of Exploiting Working-Class Fears. And then he posed a rhetorical question for all of us:

The headline is baffling – exploiting fears is now a political no-no? – and shows a failure of nerve somewhere in the editorial process.

For a moment it was me who was baffled. It took a second to process what exactly Maguire was getting at. To me, “exploiting fears” is a moral failing. Full stop.

For Maguire, exploiting fears is a given in the political process and unworthy of notice.

At first, I was offended. Then I realized that we’re both probably correct in our own way, but with limitations.

I’m sure if I challenged him, Maguire would recite countless examples of Democratic politicians exploiting the fears of the electorate. These would be fears about the Supreme Court overturning Roe v. Wade, or fears about NSA surveillance, or fears about grandma losing her Medicare or Social Security. No doubt, talking about the bad things that may result if the other party wins is a core element of all political campaigning, and it always has been.

I think this is different in kind, though, than using fear itself as a political tool. It’s hard to draw a hard line, and it’s partly about the merit of the threat you’re talking about. Jim Geraghty tried to get at the distinction in a piece he just wrote at the National Review that complains about Democratic accusations of fear-mongering.

…all of other threats that we’re told are more likely to kill us than a terrorist — other drivers, the ladder at home, the stove, the local swimming pool – aren’t deliberately trying to kill us.

…You may fall off your ladder while putting up the Christmas lights on the roof, but it’s not like there’s a sinister group, al-Laddera, plotting to wobble when you’re leaning over to put that last string up above the gutter. There’s not much the government can do to stop you from falling off a ladder, other than PSAs saying “be careful!” But there’s an awful lot the government can do to target terrorists and mitigate the threat they present.

In other words, for Geraghty, it’s legitimate to continually alarm the electorate about a very low-probability threat to their personal safety because there is at least something the government can do to minimize that threat.

For me, though, the responsible thing to do as a political leader is to calm people’s fears both so that they won’t be needlessly or disproportionately afraid and so that they don’t freak out and make unreasonable demands on their political leaders.

What’s really bad, in my opinion, is to deliberately increase people’s sense of insecurity not primarily so that they will demand policies to keep them safe but to make them more inclined to vote for you and your political party. Making people afraid for political gain is cynical and almost cruel.

So, naturally, I see it as dubious when someone like Donald Trump ramps up people’s anxieties and provides nothing solid as actual policy prescriptions. To me, that’s totally different than arguing that electing Hillary Clinton will result in a Supreme Court less inclined to overturn Roe v. Wade or energy policies less favorable to coal. You can scare and motivate people to vote based on accurate information. That’s not a political no-no, and it never has been.

But “exploiting” fears is a little different, especially when part of your pitch is to create fear when none ought to exist (“The president is a secret Muslim”) or to ramp fear up beyond any rational level, which is what the terrorism vs. wobbly ladder comparison is meant to illuminate.

 

By: Martin Longman, Political Animal Blog, The Washington Monthly, December 22, 2015

December 23, 2015 Posted by | Donald Trump, Fearmongering, Politicians, Terrorism | , , , , , , | 3 Comments

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