“The Unprecedented ‘Precedent'”: What Kind Of Dictator Must Obama Be To Oppose 80 Years Of “Standard Practice”?
How can you tell the seemingly unanimous position of the Republican Party that President Barack Obama should not be permitted to select the late Supreme Court Justice Antonin Scalia’s successor is motivated by something other than apolitical concern for the republic? You can start by looking at the ways that their main talking point – that such an election-year nomination hasn’t been confirmed in 80 years – is both factually incorrect and more broadly intellectually dishonest and a novel reinterpretation of “precedent.”
Eighty years has become a truly magical number in the day since Scalia shuffled off this mortal coil. “The fact of the matter is that it’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year,” Republican Senate Judiciary chair Chuck Grassley said. Standard practice! What kind of dictator must Obama be to oppose 80 years of standard practice? “It has been over 80 years since a lame duck president has appointed a Supreme Court justice,” Florida Sen. Marco Rubio said in the Republican presidential debate Saturday night; “We have 80 years of precedent of not confirming Supreme Court justices in an election year,” Texas Sen. Ted Cruz echoed.
Flim-flam and jiggery-pokery.
Just as a factual matter, as has been widely noted, Reagan nominee Anthony Kennedy was (unanimously) confirmed to the court in February 1988 – not only an election year but a year in which Reagan was term-limited and could not run again. So just right off, the talking point is wrong. (Grassley, by the way, broke with his own self-professed “standard practice” and voted to confirm Kennedy.)
But! But! But Kennedy was nominated in 1987, so he doesn’t count, right? When was the last time in history that a president nominated someone for the court in an election year and the Senate confirmed them? That would be Franklin Roosevelt nominating Frank Murphy, then the attorney general, on Jan. 4, 1940, and the Senate confirming him 12 days later. So that was 76 years ago, which is still less than the enchanted “80” benchmark.
So where does the 80-year figure come from? So far as I can tell – through a cursory bit of Googling – it originated with a National Review post from Ed Whelan at 5:32 p.m. yesterday, some minutes after the news of Scalia’s untimely demise started to spread around the country. Points to Whelan for quick research but note how he phrased his item: “It’s been more than 80 years since a Supreme Court justice was confirmed in an election year to a vacancy that arose that year, and there has never been an election-year confirmation that would so dramatically alter the ideological composition of the Court.” He was referring to Benjamin Cardozo, “confirmed in March 1932 to a vacancy that arose in January 1932,” 84 years ago.
Note the rhetorical evolution from Whelan’s careful phrasing (“… in an election year to a vacancy that arose that year”) to the more widely promulgated talking point as expressed by, say, Grassley (“standard practice over the last 80 years to not confirm Supreme Court nominees during an election year,” period) or Cruz (“80 years of precedent of not confirming Supreme Court justices in an election year”).
Details, details, right? Do they matter? Well, yes, they do. Cruz, Grassley and anyone who repeats the assertion that there’s 80 years of precedent against confirming nominees in an election year is, in fact, wrong.
And the difference is important for a couple of reasons: First, imprecision reflects the questionable logic of the alleged precedent: that Obama’s “lame duck” status – lame duck traditionally means that his successor has been chosen, not that at some point in the future he’ll definitely be out of office – should deprive him and relieve senators of their constitutional duty. How better to justify this notion than by invoking tradition. But this is not a tradition of nonconfirmation in an election year (Kennedy was confirmed) or of presidents not nominating in an election year (Lyndon Johnson nominated Abe Fortas and Homer Thornberry in 1968) or of only confirming in an election year if the nomination came in the previous year (Murphy), but of not confirming in an election year when the vacancy occurred in that year.
That’s a much narrower standard than is being broadly bandied about. But it has to be or else the 80-year “standard practice” becomes less impressive: 76 years, or 48 years or 26 years.
The beauty of 80 years is that it sounds like an awfully big number – saying that the GOP is merely abiding by the “standard practice” of 80 years makes it sound routine, as if this is something that’s come up time and again over eight decades and is a settled matter. But since Cardozo was confirmed this narrowly drawn set of circumstances has arisen … once. Once! One instance in eight decades does not “standard practice” make.
Neither does it make 80 years of precedent. In fact it’s the opposite of precedent: The fact that 84 years ago Cardozo was nominated and confirmed to an opening that arose in an election year is actually precedent for – wait for it – considering an Obama nominee.
So if not respect for venerated precedent, what is going on here? Simple: The GOP neither wants to put another Obama nominee on the court nor allow its ideological balance to tip – especially when there’s a nontrivial chance that a year from now they’ll be able to replace Scalia with someone of like philosophy.
Does anyone think that if Scalia had died in December – before the election year – that the GOP reaction would be at all different? Or that in an alternate reality Senate Majority Leader Mitch McConnell is telling President Mitt Romney that a Supreme Court nomination won’t be considered because he’s in the last year of his term?
The party is putting governing on hold in the name of political calculation. Republicans should own up to it and drop both the “80-year” talking point and the larger pretense of principle.
By: Robert Schlesinger, Managing Editor for Opinion, U.S. News & World Report, February 14, 2016
“History Isn’t On Their Side – And Neither Is The Calendar”: Justice Kennedy’s Confirmation Debunks Key GOP Talking Point
Soon after Supreme Court Justice Antonin Scalia’s death was announced, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) said in a statement, “The fact of the matter is that it’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year.”
The fact of the matter is the chairman of the Senate Judiciary Committee should have done his homework before getting this wrong.
The “80 years” talking point spread like wildfire in Republican circles – it was repeated by Ted Cruz and Marco Rubio during Saturday night’s debate – to the point that the GOP has convinced itself that at no point in the modern era has the Senate confirmed a Supreme Court justice in an election year.
About 14 justices were confirmed in election years, and perhaps the most pertinent example is Justice Anthony Kennedy. As the Washington Post’s E.J. Dionne noted this morning:
A Senate controlled by Democrats confirmed President Reagan’s nomination of Anthony Kennedy on a 97 to 0 vote in February 1988, which happened to be an election year.
Yes, in Reagan’s eighth year, nine months before Election Day 1988, the Democratic-led Senate confirmed Kennedy with ease.
Chuck Grassley, who’d already been in the Senate for seven years at that point, delivered remarks on Feb. 13, 1988 – exactly 28 years to the day before Scalia’s passing – urging the Senate to confirm Kennedy during that election year.
Grassley voted for Kennedy’s nomination on the Senate floor soon after. So too did a young man by the name of Mitch McConnell, a Republican senator from Kentucky in his first term.
At the time, Ronald Reagan, stung by two failed nominees to the high court (Douglas Ginsburg and Robert Bork), said at the time that if Senate Democrats played election-year games by stalling on Kennedy’s nomination in 1988, the “American people will know what’s up.”
And on this, he was correct.
But we know, of course, that Democrats didn’t bother. There was a vacancy on the Supreme Court; the White House nominated a qualified and credible jurist; the Senate considered his qualifications; and he was confirmed in an election year without much of a fuss – even though the Senate was controlled by Democrats and Reagan was a Republican president.
It’s true that Kennedy was first nominated in late 1987, but the point is the right is now arguing that election-year confirmation votes have no modern precedent. Or as Grassley put it, “[I]t’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year.”
The Kennedy example proves otherwise.
If this were December 2016, Senate Republicans would be in a far better position to balk. But it’s mid-February, and the Senate’s to-do list for the next several months is quite thin. History isn’t on their side – and neither is the calendar.
By: Steve Benen, The Maddow Blog, February 15, 2016
“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
“Kakistocracy”: Government By The Worst Politicians Who Say They Love America, But Hate The American Government
We can see a troubling future looming for America in two seemingly unrelated events — the water crisis in Flint and the Republican presidential primaries.
Both suggest that America is moving away from the high ideals of President Kennedy’s inaugural address — “Ask not what your country do for you, ask what you can do for your country.” Instead we see politicians who say they love America, but hate the American government.
There is a word to describe the kind of government Michigan has and America is at risk of developing. It’s called kakistocracy.
It means government by the worst men, from the ancient Greek words kákistos, meaning worst, and kratia, meaning to rule.
Think of Sheriff Joe Arpaio of Arizona, Governor Paul LePage of Maine and others notorious for abuse of power and utter contempt for those who disagree with them.
We can see one of the worst in Michigan, where Governor Rick Snyder persuaded the legislature to grant him imperial powers to take over local elected governments. Soon a whole city was poisoned.
Snyder, like all leaders seeking to replace self-governance with dictatorship, claims that he acted solely in the best interests of the people. Snyder’s administration did not just fail to forcefully correct the evil it had wrought; it actively tried to hide the awful truth, another badge of dictators.
When the official secret was finally exposed, Snyder showed himself to be at best a slothful minimalist in fixing his mess. He also made what he claimed as a full disclosure, while withholding the most important documents about his toxic administration.
On television you may have seen National Guard troops, called up by Snyder, handing out bottled water. It was a cynical PR stunt: Seven Guardsmen at one location in a city of 99,000 people.
An accountant by profession, who calls himself a tough nerd, Snyder fields mass phone calls rather than take charge in Flint, the once prosperous home of Buick made famous in Michael Moore’s 1989 documentary Roger & Me.
Snyder tries to shift blame to people he appointed. And he remains focused on corporate tax favors, not the people of Flint, a city with a slight black majority.
To those who insist racism is in the past, Snyder’s behavior shows that racialized politics endure.
Bad as poisoning an entire city is, that’s nothing compared to what the Republican candidates for the White House propose – more war, more tax cuts for the rich, massive surveillance and a host of other policies fit not for a land of liberty, but a police state.
Think about Chris Christie, the New Jersey fabulist who misleads about his appointment as U.S. Attorney for the Garden State and who mocks people who say he should be doing more to address shore flooding since Hurricane Sandy in 2012. There’s his false justification for stopping a replacement for the century-old rail tunnel between his state and Manhattan, and his aggressively hiding of the facts about the dangerous George Washington bridge lane closures by his aides.
But the monstrous wrongdoing of Snyder and the incompetency and mendaciousness of Christie pale next to some other GOP presidential wannabes. Many of them love war, especially now that, having avoided military service in their youth, they’re too old to face enemy fire on the battlefield.
Senator Ted Cruz wants to “carpet bomb ISIS into oblivion” until the sand “glows in the dark.” Asked about the legality of this, Cruz doubled down during the Fox News debate last month. The Texas senator thinks this is a brilliant military strategy, even though actual experts think it is a terrible idea and so does America’s top general in Iraq.
By the way, indiscriminately bombing civilians is a war crime.
Donald Trump favors the policies of Mexican drug cartels and the most vicious Mafia bosses. He doesn’t just want to wipe out those seeking to create the Islamic State in Syria and the Levant. Trump vows to kill their families, too. Challenged by a college student on this, Trump too doubled down.
It was fellow candidate-at-the-time Rand Paul, the libertarian senator from Kentucky, who pointed out that killing the families of combatants is a war crime.
Of course killing families would only stir hatred of America and lead to more violence. Sending Americans once again into Middle East combat would only enrage more young Muslim men, which is why I earlier described Trump as ISIS’ chief recruitment officer.
Trump would also break up families by arresting 11 million or so immigrants who are here illegally; bar any Muslim from entering the country; spy on mosques; impose tariffs; punish corporations that make investments he dislikes, among his long list of promised extra-Constitutional actions.
Asked about what laws authorize his proposals, Trump claims unnamed experts are on his side.
Trump’s proposal is not so much for a term or two as president, but for a Trump dictatorship. (see Snyder, Rick; imperial powers).
Then there’s the vile language Trump uses, claiming variously that he was just repeating what someone else said or that he will not be forced into political correctness. Evidently Trump’s mother failed at teaching him any manners. The Presbyterian Church, which Trump recently made a public show of attending, also failed at teaching him about asking God for forgiveness, about the sacraments, the names of Biblical chapters, and the last five of the Ten Commandments.
Except for the now-departed Rand Paul, the Republican presidential candidates talk easily of war, almost as if they were proposing a picnic. And they all insist we need a bigger military, even though more than 40 percent of all military spending worldwide is American.
ISIS is a pipsqueak threat, nothing like the Soviet Union during the Cold War or the Axis powers of World War II. Yet the Republicans encourage us to live in fear. ISIS is failing and can do no more than harry us, but Trump, Cruz, and some of the other candidates would have us give up our liberties and grant them powers that the framers of our Constitution explicitly denied the executive branch.
Other Republicans have shown their lack of knowledge to be almost Trumpian in its vacuity, especially Senator Marco Rubio and Dr. Ben Carson. The one woman who was running on the GOP side, Carly Fiorina, has a track record in business (and veracity) that deserves boos, not applause.
On top of this the Republicans, everywhere, continue marketing the economic snake oil that what ails our economy is that the rich do not have enough and are in dire need of more tax cuts.
We should not be surprised that in so many places our governments are under the control of men and women who are careless, destructive, incompetent, and passive-aggressive.
Since Ronald Reagan declared in his 1981 inaugural address “government is not the solution to our problem, government is the problem” we have seen more and more people who hate government going into government.
A government run by people who believe it is bad will, of course, make it fail. They are dedicated not to making our government work for us, but to making their own worst beliefs about government come true. We see this at every level from Uncle Sam down to the local school boards that try to replace biological science with religious beliefs.
Big business has learned to take advantage of government run by those who despite it. With cronies in high places big companies find it much easier to mine gold from the Treasury than the market, the subject of my book Free Lunch.
Our Constitution makes the federal government ours. We choose our leaders. We decide what powers they can exercise. And if we elect people who are nasty, brutish, or megalomaniacal we have no one to blame but ourselves.
That anyone in America would think that any of the Republican candidates, save Governor John Kasich of Ohio, is competent to hold office shows how easily politics can drift from ideals to the basest attitudes. (More than three dozen progressive members of Congress told me this month that while they don’t agree with Kasich on most issues, he is unquestionably competent.)
The Founders warned us to beware of those who lust for power.
Now we see on full display those who lust not just for the authority our Constitution conveys on the Office of President, but who seek to do as they please without regard for the checks and balances of our Constitution, without regard for thoughtful strategies in dealing with foreign powers and would-be powers, and without regard for human life, not just among the wives and children of ISIS combatants, but among those American citizens who are poor, black, Latino, Muslim — or happen to live in Flint.
Kakistocracy. Use that word. Get others talking about what it means.
By: David Cay Johnston, The National Memo, February 13, 2016
“At The Top Of The To-Do List For 2017”: Here’s What Will Happen On Taxes If A Republican Is Elected President
The Tax Policy Center has released an analysis of Marco Rubio’s tax plan, which, like their analyses of Jeb Bush’s plan and Donald Trump’s plan, shows that it would result in a staggering increase in the deficit if it were implemented — $6.8 trillion in Rubio’s case, compared to an identical $6.8 trillion for Bush and $9.5 trillion for Trump.
The problem is that it’s awfully hard to wade through all these details and numbers, grasp the distinctions between them, and determine which one you find preferable.
The good news is, you don’t have to.
That’s in part because the differences between the various Republican candidates’ plans are overwhelmed by what they have in common. But more importantly, it’s because if one of them becomes president, the tax reform that results will reflect not so much his specific ideas as the party’s consensus on what should be done about taxes.
So to simplify things, here’s what you can expect if a Republican is elected president in November:
- Income tax rates will be cut
- Investment tax rates will be cut
- The inheritance tax will be eliminated
- Corporate income tax rates will be cut
- Corporations will be given some kind of tax holiday to “repatriate” money they’re holding overseas
And that’s basically it. Yes, there will be hundreds of provisions, many of which could be consequential, but those are the important things, and the things almost all Republicans agree on.
Let’s keep in mind that this is the policy area Republicans care more about than any other. There are pockets of conservatives for whom the details of defense policy are important, and others who care a lot about education, and even a few who care a lot about health care. But all of them want to cut taxes. They may get passionate talking about how much they want to repeal the Affordable Care Act, or how tough they’ll be on border security, or how they’ll totally destroy the Islamic State. But if a Republican is elected in 2016, it is a stone-cold guarantee that changes to the tax code will be at the top of the to-do list for 2017.
That doesn’t mean, however, that the tax reform we get will be exactly what that president promised during the campaign. For instance, Ted Cruz is proposing what’s essentially a Value Added Tax (VAT). But he won’t get that passed even with a Republican Congress, because it’s controversial within the party.
That’s critical to understand. It isn’t as though congressional Republicans, who have been waiting to do this for years, will just take the new president’s plan and hold a vote on it. Instead, they’re going to hammer out a complex bill that reflects their common priorities. It will be a product of the party’s consensus on what should be done about taxes, a consensus that has been forming since the last time they cut taxes, during the George W. Bush administration.
You can make an analogy with the ACA. By the time 2008 came around, Democrats had arrived on a basic agreement on what health care reform would look like. That isn’t to say there was no disagreement within the party. But the outlines had been agreed to by the most powerful people and the wonks within the party: expand Medicaid for those at the bottom, create exchanges for people to buy private insurance, offer subsidies to those in the middle. That’s why the plans offered by Barack Obama, Hillary Clinton, and John Edwards in that election all followed that outline, and that’s what the Democratic Congress eventually produced.
The things that I listed above are the essential tax consensus of the GOP at the moment. Some people would add or modify some elements — Rubio, for instance, would completely eliminate investment taxes while others would merely reduce them, but he would also expand the child tax credit. But the outline is the same, particularly in its effects. Here’s how we can summarize those:
- Poor and middle-class people will pay a little less in taxes
- Wealthy people will pay a lot less in taxes
- Corporations will pay a lot less in taxes
- The deficit will explode
Republicans, who profess to care deeply about deficits, will claim that their tax plan won’t actually cost anything (or will cost very little), because when you cut taxes, you create such a supernova of economic growth that the cost of the cuts is offset by all the new revenue coming in. This is sometimes referred to as a belief in the “Tax Fairy” because it has as much evidence to support it as a belief in the Tooth Fairy. It is a fantasy, but their continued insistence that it’s true requires us to address it.
You don’t need a Ph.D. in economics to remember the history of the last quarter-century. Bill Clinton raised taxes, and Republicans said the country would plunge into recession and the deficit would balloon; instead we had one of the best periods of growth in American history and we actually got to federal budget surplus. Then George W. Bush cut taxes, and Republicans said we’d enter economic nirvana; instead there was incredibly weak job growth culminating in the Great Recession. Barack Obama raised taxes, and Republicans said it would produce economic disaster; instead the deficit was slashed and millions of jobs were created.
So we don’t actually have to argue about whether the Republican tax plan will increase the deficit, because the theory behind it has been tested again and again, and the results are obvious. If they cut taxes as they’d like, maybe the deficit will go up by a trillion dollars, or five trillion, or eight trillion. We don’t know exactly how much it will go up, but we know it will go up.
As far as Republicans are concerned, dramatic increases in the deficit are a reasonable price to pay to obtain the moral good of tax cuts. If you think I’m being unfair, ask them whether they believe Bush’s tax cuts were a mistake. They don’t.
You can agree or disagree. But you don’t have to wonder what will happen if a Republican is elected. There may be other plans that president will be unable or unwilling to follow through on, but I promise you, cutting taxes is one thing he absolutely, positively will do. And we don’t have to wonder what it will look like. We already know.
By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, February 12, 2016
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