hardline political news and analysis

Forthcoming Soon: THE CLASS

An atypical edition of DOMEocracy today to announce that I’ve reached an agreement with Johns Hopkins University Press to publish my book on the House Class of 1974 and the dramatic impacts, and unintended consequences, of congressional reform.

As many DOMEocracy readers know, this historical study has been a major project over the past 3 years, and has involved interviews with over 40 members of the Class and others who worked in, reported on, and were involved with the House of Representatives during the crucial 94th Congress.  Thanks to their sharing with me unique recollections and insights into the reform efforts of the 1970s, THE CLASS contains substantial material never before included in any account of this crucial era of House history.

I have completed a draft of the book, but now will be editing it for presentation to JHUP by the end of the year.  There will still be inevitable editing and production time, but with any luck,  THE CLASS will be published next year.  I will keep you informed of progress, but wanted to share the good news with readers of DOMEocracy, and to thank you for your allowing me to use this blog to hone my research and writing skills over these past 3 years.


Advice to Democrats: ‘Assume Nothing’

Throughout my four decades of work in the House of Representatives, I kept a small poster prominently displayed in my office. It advised simply: “Assume Nothing.” Still good advice.

Democrats might be excused for performing private celebratory dances after Donald Trump became the certain Republican nominee for President. Trump enters the general election campaign with huge negatives, a fragmented party, and a slew of quotes by and about him that cannot be described as anything but catastrophic to any other candidate.  It might not be enough, particularly since millions of Americans might believe the description also fits Hillary Clinton.

We have always had snake-oil charlatans maneuvering for political power — demagogues including Joe McCarthy, George Wallace and Huey Long.   Somehow the system managed to shake them out before they were able to reach the highest rungs of power. Many Democrats assume that some historical fail safe mechanism is still in working order.

Maybe, but don’t bet the White House on it. So a few words of advice to Democrats as we slide deeper into the muck of this Fall’s campaign.

  1. Assume nothing. There will be a temptation to conclude that Clinton has it in the bag.  Wrong.  Regardless of Trump’s buffoonery, Clinton has to sell herself and articulate clear policies to a skeptical electorate. Assume there will be unpredicted turns in the road; assume Trump will manage to cobble together a badly fragmented Republican Party highly motivated to defeat Clinton; and assume a serious Clinton blunder or two  (by Hillary, Bill, or both). It will not take much for the polls to narrow and when they do, the press will latch onto the “horse race” aspect of the campaign. Come October, the chances are it will look like a serious contest.
  2. Do not take Trump lightly, however much his antics invite you to do so. The new Quinnipiac poll showing razor thin races in Ohio, Florida and Pennsylvania may be slanted towards Trump (Quinnipiac polls lean right) but it suggests this election may not be a blow-out. Celebrity at Trump’s level – tabloids, reality TV, eponymous products – combined with his “outsider/not politics as usual” message has a distinct and powerful electoral value regardless how simplistic the message (or the candidate) may be. If there is any doubt, read up on Gov. Arnold Schwarzenegger or Gov. Jesse Ventura, both elected in reliably Democratic states.
  3. Take the debates extremely seriously. Barack Obama suffered a totally avoidable self-inflicted wound when he flubbed the first debate against Mitt Romney in 2012. Similarly, Al Gore incomprehensibly lost debates to George W. Bush in 2000 because he believed the electorate would recognize that he was smarter and better informed. Like many experienced politicians, Clinton can get mired in the weeds, while Trump glibly ignores questions, hurls insults, and enunciates his top line themes that seem compelling to a not-to-be ignored segment of our country. Clinton cannot risk poor debate performances that elevate Trump’s standing simply for surviving on the stage with her. She needs to practice with an attack dog, not a bank of think tank experts, until she can reflexively recite taut, pithy and effective points and rejoinders. And, yes, she must avoid that stridency that can make her presentations unappealing if not alienating. She cannot take the high road: if he hits, she has to prove she cannot be bullied or intimidated, while not stooping to his juvenile level.
  4. Don’t bet that fear of Trump will produce huge turnouts that favor Clinton. The widespread ennui that has gripped the electorate could easily dampen voter participation among the very portions of the electorate that Clinton still needs to convince: youth, minorities and suburban women. A full out battle in the mud over the next six months could dispirit millions of exhausted and demoralized voters. Since Sanders will likely fight into June or even later, a very aggressive strategy is essential for enticing his dispirited supporters and ensuring their turnout. Trump’s base, while filled with infrequent voters, may well be energized to turn out in large numbers. Clinton needs to aggressively use surrogates – President Obama, celebrities, local officeholders and Bill Clinton – to get her core constituencies jazzed about her message and worried enough about Trump to turn out and vote.
  5. Devote substantial energy to the down-ballot races. The electoral catastrophe that may be awaiting Trump presents invaluable opportunities for Democrats at the congressional and state and local levels that are essential both for carrying out the Clinton policy agenda (including appointees), and also to regaining many of the governorships and the nearly 1,000 state legislative offices lost to the Republicans since 2009. Democrats need those victories desperately so that they go into the 2020-2022 reapportionment timetable with strong incumbents in office who can reverse the egregious gerrymandering that has cost Democrats a dozen – and probably many more — House seats. Clinton needs to devote sufficient time and resources to promoting down-ballot Democrats at the local Congressional district level so that if Trump trips up and 2016 becomes a Democratic wave year, as many Democrats are riding the curl as possible.





One Blow for Income Equity

An article in the May 8th New York Times lays out a golden messaging and policy opportunity for President Obama and congressional Democrats, a huge home run that can trump Trump and expose Paul Ryan and the Republican party in general as the clueless guardians of the one-tenth of one percent.

As campaign strategists know and Donald Trump has just demonstrated with disturbing effectiveness, messaging is key to political success. The simpler the message, the more easily it is disseminated, and the more often it is repeated correlate with precise accuracy the likely impact.

So far this political season, the effective message has been the unresponsiveness of elected officials to the economic plight of the average American. The candidate and party who can translate concern about the maldistribution of wealth into genuine policy results is going to get a leg up over the next few months.

Now, unfortunately, the details of this proposed message are a bit convoluted, especially if you talk to a tax attorney or CPA; so don’t. Here are the basics. Provisions of the tax code, or tax regulations (which one is actually critical to the outcome) let a tiny fraction of Americans – not the top ten percent or the top one percent that Bernie Sanders rails about, but rather the top one-tenth of one percent (the percent to which Donald Trump belongs) to camouflage the bulk of their sizable annual income as “capital gains” instead of “income” and, in doing so, cut their tax rate in half. And when you shelter the taxes of those folks, that’s a whole bunch of money that goes to promoting income inequality.

Since 2009, President Obama has proposed reforming this “carried interest” provision, but the failure of Congress to pass comprehensive tax reform has left the provision in place, and billions continue to flow into those privileged pockets. Congressional Democratic leaders for the most part are on board with the change (a few Democratic outliers are wary of offending Wall Street buddies), but without Republicans moving along a tax bill, they have no vehicle to force a vote on ending the carried interest loophole.

But there might be another way for Democrats to seize the issue of tax reform and actually strike a blow for greater income equity. Several tax scholars and practitioners argue there is no need to wait for comprehensive tax reform.  Instead, these experts argue, the President could direct Treasury Secretary Jack Lew and the Internal Revenue Service to issue regulations revising how carried interest is taxed, closing the loophole, gaining tens of billions of dollars to help reduce the deficit, and impacting only the swell folks with the big homes, private jets and humongous trusts.

Since the 2012 election, many Democrats have been encouraging Obama to crank out more Executive Orders to effectuate policies that Congress will not debate, let alone legislate.   And while it pains the heart of those who have invested decades in rebuilding Congress as a co-equal branch of government, there is little alternative to policy stasis if Congress is unable, or unwilling, to perform its constitutional responsibilities as has largely been the case since 2011. The fact that many Republicans are delighted with inaction and untroubled by the injurious impact such inactivity has on the reputation of government is irrelevant: when one branch of government shuts down, it should be no surprise that other branches move to take up the slack.

So Obama has been issuing Executive Orders on a wide range of subjects from marriage equality to the minimum wage to immigration. Not long ago, Treasury Department issued welcome rules to prevent U.S. companies from relocating their corporate headquarters (wink, wink) overseas to circumvent American corporate taxes. Now, according to some tax specialists, Obama could do the same with carried interest.

According to Alan J. Wilensky, a former deputy assistant Treasury secretary, changing the carried interest “is something President Obama can do and should do,” an opinion shared by other tax experts. According to Victor Fleischer, a University of San Diego law professor, Congress in 1984 not only intended that hedge fund managers pay income taxes on their earnings, but gave Treasury “broad discretion” to require them to do so. Flesicher estimates closing the loophole could save $180 billion (with a “b”) over the ten year budget window that Congress uses; the Congressional Budget Office says the number is closer to $18 billion.

From my experience, CBO is probably closer to the truth, but why leave even $18 billion waiting on the table awaiting “comprehensive tax reform,” especially since that legislation — whenever it ultimately emerges — undoubtedly will confer addition benefits on the same class of ultra-affluent Americans?

Voters are crying out for somebody to do something that demonstrates  concern about their top issue: economic security. (There is considerable evidence that is the #2 and #3 issue as well.) Closing the carried interest loophole does not exactly require a profile in courage: even Donald Trump admits it is a wasteful abomination. In fact, so few people even bother to justify it that failure to shut it conveys far more political risk than actually doing so.

Acting unilaterally on carried interest might upset some green eyeshade-wearing purists who think major changes in the code should only occur in conjunction with comprehensive tax reform. But there isn’t going to be tax reform, comprehensive or otherwise, between now and Election Day, as Speaker Ryan (the former Ways and Means chairman) has already admitted. So why not act unilaterally to close a loophole, raise a few billion a year and strike a blow for income equity all without hurting 99.9% of the population?

Naturally, the lawyers will caution against such a move by the President, warning that the courts might step in and rule his action an overstep. Well, the courts have done that on other orders, specifically, his immigration directives, but that possibility did not slow down the President. Others may argue acting on carried interest will angry up the Republicans whom we will need on other issues. Right. Like they could be less interested in being cooperative. In fact, far better to take away one GOP chip in future tax negotiations, if and when they ever occur: “You get nothing for ending carried interest because … it doesn’t exist anymore.” Some may complain that, combined with ending the Bush upper income tax cut in 2013, Democrats will look like we are always going after the fat cats. Well, as Willie Sutton used to say when asked why he robbed banks, “That’s where the money is.”

Congressional Democrats should unite behind an effort to close the carried interest loophole: call it “End the $180 billion loophole for the .1%” or something a little more chant-able. Pressure, or encourage, President Obama to take the plunge, now, not a few weeks before Election Day when no one knows it happened, and then message like crazy the blow that was struck to end income inequity. It’s been the party line for 7 years: now, do it! Get carried away.

Tuesday’s Undercard Winners

Tuesday’s Amtrak corridor primaries seem to spell the end of the line for Sen. Bernie Sanders and the also-rans ineffectively challenging the implausible Donald Trump. It is possible that the match-up in the fall will not be Clinton v. Trump, but don’t bet on it: Clinton will reach her magic number soon, and even if Trump stumbles at securing the 1237 delegates he needs, the Republican establishment will be hard-pressed to deny the nomination to someone who has so dominated the primary season, delivering it instead either to someone he consistently thrashed, or someone who didn’t even bother to run.

There were other races on Tuesday that bear noting. In Maryland’s Democratic Senate primary (the only race that counts in the most reliably Democratic state), two House Members with nearly impeccable liberal voting records squared off against each other: Chris Van Hollen, the long-ranking Democratic chairman and senior member on the Budget Committee, and Donna Edwards, who was seeking to become only the second African-American woman elected to the Club.

For most of the winter and spring, the race seemed too close to call. Van Hollen’s strength in the sprawling Montgomery County was offset by Edwards’ grip on her Prince George’s County district: the battle would be fought out in Baltimore.   Although the presidential contest brought out large numbers of minority voters, Van Hollen easily defeated Edwards, taking about one-third of the black vote. Many observers faulted Edwards for what seemed shrill and blatantly false accusations that Van Hollen was sympathetic to the National Rifle Association and slashing Social Security benefits. When Edwards ran an image of a weeping President Obama to illustrate her support for tougher gun restrictions than Van Hollen, she earned a rare rebuke from the White House. Over the last two weeks of the campaign, polling detected a decided erosion of support for Edwards, largely because of her controversial campaign tactics.

But another shortcoming of the Edwards campaign was her thin resume of legislative achievements. Although Democratic Leader Nancy Pelosi (who remained neutral in the race) appointed Edwards to lead an effort on economic policy, the congresswoman had little experience with policymaking at the upper echelons of Congress. By contrast, Van Hollen was a skilled legislator, entrusted with leading Democrats on the Budget Committee for years, heading up negotiations with congressional Republicans and the White House. Most observers saw in Pelosi’s persistent promotion of Van Hollen – on Budget, fiscal commissions, and White House negotiations, as well as the chairmanship of the Democratic campaign committee – as evidence of her confidence in his political and policy skills.

Edwards tried to appropriate the Sanders “inside/outside” message, simultaneously asserting she was well-connected and experienced, while also claiming to be a community activist free from taint as a professional politician, but it didn’t work, and her fact-challenged attacks seem to have backfired.

Van Hollen becomes not only a certain senator, but nearly as likely a future presidential candidate in 2020 or 2024, depending on how things go for Mrs. Clinton in November. As I noted in DOMEocracy a year ago, “Van Hollen’s easy manner and upbeat style camouflages a skilled and effective politician. [He has] enjoyed the confidence of Members as a thoughtful and savvy technician who also knew how to play the political and media games expertly.” While already 57, Van Hollen will be at the edge of a suitable age for a presidential run in 2024, but still younger than Clinton, Trump or Sanders this year. Given the thinness of the current Democratic bench, he will be carefully watched throughout his Senate career for signs of White House ambition.

Two other races are of interest. In the contest for the Democratic nomination in Van Hollen’s 8th congressional seat, the early favorite was Kathleen Matthews, a longtime television reporter and Marriott executive who is also the spouse of MSNBC’s Chris Matthews. Matthews is smart, personable, well-connected and the only major female contender in the primary. Her main competitor was thought to be state Sen. Jamie Raskin, a law professor with an impressive set of progressive legislative accomplishments in Annapolis.   A surprise entrant was a self-funding multi-millionaire, David Trone, who spent an obscene $12 million of his own money – five times Matthews and Raskin’s totals – to promote himself as an outsider candidate.

If Matthews had name recognition and Trone had money, Raskin had something of exceptional value in a House race: on-the-ground organizing skill. The most progressive voice in the race (he led the successful fights to end capital punishment and to permit same sex marriage in Maryland), Raskin’s Senate district covered only about a sixth of the congressional district, but his organizing diligence paid off. While some may compare his leftist politics and grassroots strategy to Bernie Sanders, Raskin’s record suggests he is more of a team player, a valued asset in House politics, and he will be one to watch in the 115th Congress.

In Pennsylvania, the story was bit different, as Katie McGinty, a former staffer to Al Gore and in the administrations of Pennsylvania governors Tom Wolf and Ed Rendell. A vigorous environmentalist, McGinty was the establishment candidate for the Democratic Senate nomination, strongly backed by President Obama (who called her “a true champion for working families”), Vice President Biden and other party elders against former Rep. Joe Sestak, who had lost a race for the seat six years ago. Sestak had been an irritant during his brief four year House career, often making a point of separating himself from the House leadership and other Democrats. A retired three star admiral, Sestak had defeated incumbent Sen. Arlen Specter, who had switched from Republican to Democrat in hopes of retaining his Senate seat in 2010, but narrowly lost the fall election to Pat Toomey.

Unlike Van Hollen and Raskin, McGinty’s route to a seat in Congress will not be secure. She still needs to defeat Toomey, elected in the Tea Party bacchanalia of 2010 but arguably too hard-line a conservative for Pennsylvania, especially in a presidential year when there will be a far larger turnout than when he won in the 2010 off-year vote.

Tuesday’s primaries not only pushed the presidential process towards its likely conclusion (mercifully), but elevated to national visibility three liberal Democrats who hold great promise as the party peers ahead into the post-Obama era.


Trump’s Triumph

It has been a while since a national party gave its presidential nomination to a candidate who appeared destined for electoral humiliation, but the rambling carnival road show that passes for the Republican Party seems likely to do just that. The consequences for conservatives, both in the Congress and at the state and local level, could be cataclysmic. But, as that quintessential New Yorker, Ralph Kramden, used to say, “And away we go!”

Donald Trump’s triumph in New York – apparently winning all but 3 delegates that went to Ohio Gov. John Kasich – makes his eventual nomination very difficult to derail. Unless he does something extremely unpredictable or stupid – and he has already done so many times with negligible ramifications – Trump seems all but certain to arrive in Cleveland with a majority, or near majority, of the votes needed to secure the nomination.

Most observers will stipulate that if Trump arrives with the majority and secures the nomination, the scenario for the fall is grim, to say the least (though one must note “most observers” have been consistently wrong this year). His negatives, even within the Republican party, let alone among key sectors needed for a successful presidential run, are likely beyond repair; with Trump at the head of the ticket, Hillary Clinton becomes an acceptable alternative for millions of Republican women, business people, and others essential to a Republican candidate’s competitiveness.

At worst, Trump will arrive at the convention with a considerable delegate lead over Sen. Ted Cruz (whose nomination would not fare much different, it is important to note) and other also-rans. True, you either win or you don’t, but there are serious consequences to denying the nomination to a clear front-runner who fell slightly short, particularly Trump whose anti-establishment attacks foreshadow a possible independent run if he is “not treated well.” I am confident that denying him the nomination under such circumstances would fit that definition.

The track record on contested conventions is not especially heartening, which is one reason party leaders exert so much effort to avoid them. According to a Pew study, a Republican candidate who wins a nomination on the first ballot stands a 50% chance of winning the election (as opposed to a 61% chance if winning a first ballot nomination). Successful Republicans who took more than one ballot to secure their nominations include Hays (7), Garfield (36), and Harding (10), while Democratic multi-ballot nominees included Woodrow Wilson (46) and Franklin D. Roosevelt (4). The historical record certainly is clear that the longer the battle goes on (and it is unlikely Trump would yield his delegates easily), the more chances of success plummet either further.

Back in 1940, for example, the Republican convention was a wide-open affair, with many prominent Republicans vying to challenge Franklin D. Roosevelt’s bid for a third term. Among the contenders were prominent party players including Sen. Robert A. Taft (OH), Sen. Arthur Vandenberg (MI), Republican House Leader Joseph Martin (MA) and Manhattan District Attorney Thomas Dewey. Barely noticed at 3% earlier in the year was Wall Street-based power company executive, Wendell Wilkie, a strong internationalist and FDR delegate at the 1932 Democratic Convention. (Shades of Trump’s business background and meandering political leanings). It took six ballots for the inexperienced dark horse to prevail amid a chorus of supporters roaring “We Want Wilkie.” But FDR labeled Wilkie as inexperienced and untrustworthy given the international crisis the country was facing. “Better a third termer than a third rater,” FDR’s slogan went; the country agreed, giving Roosevelt a 10 point margin of victory and 449 electoral votes to Wilkie’s 82.

Republicans opened their last uncertain convention in 1976 under chaotic circumstances. The incumbent, Gerald Ford, had never been elected to the presidency or even to the vice presidency, having been appointed to the latter in 1973 upon the resignation of Spiro Agnew, and elevated to the latter upon the resignation of Richard Nixon. Ford fought continuously with the Democratic Congresses he faced, endorsed legislation that inflamed the rising right wing of his party (including a controversial labor law and negotiations on yielding the Panama Canal) which enthusiastically backed former California Gov. Ronald Reagan. Ford and Regan battled throughout the primary season, and the outcome was not clear until the convention opened and Ford narrowly triumphed. But the remaining enmity complicated Ford’s race against the reformer Jimmy Carter, who narrowly ousted the President in November.

The last genuine Democratic free-for-all was in 1912, when contenders included New Jersey Gov. Woodrow Wilson, a relative neophyte compared to opponents like House Speaker Champ Clark (MO) and Ways and Means chairman Oscar W. Underwood (AL).     Clark secured a majority on the 9th ballot, but convention rules required a two-thirds margin, which dragged out the balloting.   When Tammany Hall bosses endorsed the Speaker, reformers in the party pounced. Former three time nominee (and loser) William Jennings Bryan endorsed Wilson, who had consistently run second to Clark, and the balloting seesawed for several ballots until Wilson moved ahead on the 29th and finally won on the 46th. Unlike other multi-ballot victors (James Cox’ 44 ballots in 1920 and John W. Davis’ in 1924 come to mind), Wilson actually was elected president, but possibly only because the Republican vote was split between incumbent William Taft and former President Theodore Roosevelt. (Wilson received just 41% of the popular vote.)

The last contested Democratic convention was 1952, when Illinois Gov. Adlai Stevenson , who had declared he would not be a candidate, faced Senate powerhouses Estes Kefauver (KY), Richard Russell (GA), and Alben Barkley (KY) as well as former Secretary of Commerce and Ambassador Averill Harriman (NY).   Stevenson emerged victorious on the third ballot, but was crushed in the fall by Gen. Dwight D. Eisenhower.

Historical comparisons are entertaining, but one needs to remember that most of these past contests involved nominations and conventions in which crucial decisions were made by the political party and elected leaders, not by primary voters or caucus attendees.   Votes could be juggled and manipulated by bosses far more easily than the GOP establishment might be able in Cleveland. Moreover, the losers in most of these races were experienced politicians who remained committed to their party (TR being a notable exception in 1912, and his heresy of running as a 3rd party candidate might well have cost Republicans the White House).

Even in the days of party control of the nominating process, selecting a dark horse nominee after the major contenders had exhausted themselves (and the delegates) does not fare well. John W. Davis received less than 3% of the votes on the first ballot in 1924’s Democratic convention and was not considered a serious possibility for dozens of ballots. Davis won on the 103rd ballot, and was crushed by President Calvin Coolidge. Before Republicans contemplate digging up a fresh face to replace Trump and Cruz, they should recall Davis’ fate. Indeed, the insult would be even worse this year should the party select someone repudiated by voters or not even tested during the primary season.

The track record in modern times is not very favorable for a party divided at the convention, even when there is no multi-ballot fight (see Republicans in 1964 or 1976, or Democrats four years later and in 1980 and 1984). The goal must be to resolve the nomination as early as possible and patch up the bad feelings and wounded egos as long as possible before the gavel comes down, the confetti drops, and the nominee goes out to face his – or her — destiny. Unfortunately for Republicans, after New York, that prospect is increasingly one with orange hair, a confrontational message, and horrific negative ratings.

Budget Blues

Americans view April 15th with a certain degree of dread as they must cough up the taxes they owe the government. But for Members of Congress, April 15th has another significance – the day by which the Congress is supposed to finalize the annual budget. It is a deadline generally honored in the breach.

Since enactment of the Budget Control and Impoundment Act in 1974 – one of the signal efforts of reformers to claw back power usurped to the imperial presidency – Congress has actually met the deadline only 6 times. Even when a resolution is cobbled together weeks late, it has the effect of delaying other crucial business, especially Appropriations legislation, which is why members of the spending committee have long detested the budget process. Former Appropriations chairman David Obey has made no effort to disguise his contempt. “Nobody went to God to ask him to add four months to the calendar” at the beginning of the year to accommodate the budget process, Obey has complained. Moreover, since budgets have evolved from a congressional statement to contrast with the White House’s budget into a representation of respective party positions on spending, deficits and taxes, scholars have argued that the 1974 law helped usher in the era of polarized politics that now overwhelms much of American government.

This year was going to be different because Obey’s Wisconsin colleague, Paul Ryan, is now Speaker and able to exercise his formidable power to ensure that the budget process moves expeditiously. Ryan knows how that is supposed to occur since he was chairman of the Budget Committee for four years, as well as chairman of the tax-writing Ways and Means Committee. Moreover, the two year budget and spending agreement that Ryan, as the freshly minted Speaker, concocted with President Obama and Democrats last December should have made this year’s blueprint a slam dunk success.

But April 15th will come and go this week with no budget, largely because Ryan, as predicted, has confronted the very same obstinate sub-caucus of Republican hardliners that bedeviled John Boehner and drove him from the Speaker’s chair. Having opposed December’s two-year agreement for lifting sequestration spending caps on domestic, as well as defense, spending (without which neither Obama nor congressional Democrats would have gone near it), Freedom Caucus absolutists now refuse to rubber-stamp its higher spending levels and insist that Ryan walk back the December deal, which would make him look foolish. Since Democrats cannot be expected to vote for the GOP budget as they will for real spending measures when needed to keep government functioning, Ryan needs to cobble together 218 Republicans, a task which has proven difficult to impossible on spending-deficit-debt ceiling legislation since Republicans resumed control of the House in 2011.

There are consequences to this budget impasse, which CNN has termed “an embarrassing setback [and] … big political black eye for Ryan and his top lieutenants.” Absence of a budget resolution will likely delay work on appropriations bills almost certainly beyond the September 30th end of FY2016, necessitating a Continuing Resolution or two to keep the government open. Unlike past years, the threat of a government shutdown if such a CR does not pass doesn’t work in 2016 because such an action weeks before a national election would be suicidal. Responsibility for the last shutdown orchestrated by the hard Right fell almost entirely on Republicans, causing the party’s approval to crater in public opinion — not a scenario any sane politician wants to replicate while voters are thinking about the election.

Moreover, the lack of a budget resolution agreement with the Senate rules out a reconciliation bill that could contain changes to Obama and Democratic priorities, such as modifications to the Affordable Care Act or alterations of Obama executive orders, which might serve as useful campaign positioning for Republicans. True, Obama would veto any such changes, as he did last year, but the messaging opportunity is not without value in the election season.

The Freedom Caucus does not see any particular downside to tripping up Ryan or missing the deadlines. North Carolina’s Rep. Mark Meadows, a Freedom Caucus hardliner, praised Ryan for listening to his voluble absolutists without imposing the kind of pressure Boehner had been so reluctant to employ against party dissidents. “In times in the past, there would have been a forced vote,” Meadows said. “And because there is not a consensus from the bottom up, he has not done that.” Boehner’s example should prove a warning to Ryan: accommodating the hardliners on the bottom only encourages further intransigence.

The missed budget deadline is symptomatic of much bigger problems for Ryan and Republicans. The chronic discord within the GOP Caucus and the unwillingness (or inability) of the Speaker to cobble together a functioning majority presents real challenges to any progress on long-delayed policies by the House. One can hardly imagine a comprehensive tax reform bill, let alone needed legislation on economic revitalization, infrastructure reconstruction, climate change or national security making it through a Congress where the majority leadership cannot count on support from its own members, and lacks the fortitude, skills or wisdom to persuade its own members to act – on behalf of the party’s credibility if not the country’s best interests.

Moreover, the inflexibility of the Freedom Caucus faction will leave Ryan with little alternative other than once again cutting deals with House Democrats to avoid shutdowns and other perilous cliffs. Those inevitable acts of political pragmatism will only exacerbate the frustration of hardliners who rose up against Boehner for his repeated deals with Democrats, who provided the votes Freedom Caucus conservatives refused to provide. To make matters worse, Nancy Pelosi once again will have the upper hand, insisting that no offensive riders be attached to CRs or other “must pass” bills, a condition that drives the irreconcilables into a frenzy against the alleged collaborationists in their own leadership.

So this April 15th brings a painful message of both policy and strategic failure for Paul Ryan and his Republican majority, with little prospects for improvement in the months to come. One might wonder why the accidental Speaker was so quick to definitively close the door on the last stagecoach out of Dodge, an escape to the “relative calm” of the White House, or at least a presidential nomination that like his invitation to the speakership, might be offered on a silver platter.

Message from the Millennials

The biggest problem facing Democrats in November may not be ennui but over-confidence. True, Democrats seem divided right now, and the likely nominee, Hillary Clinton, does little to inspire the activist base. And there is the concern that the earnest Sanders supporters might feel slighted by a nominating process that does not choose their candidate and might be inclined to petulantly sit home on Election Day brooding about the machinations of Wall Street. And of course, there’s that lingering apprehension that something will pop out of the FBI or a congressional probe to taint Clinton at some inopportune moment, leaving Democrats with a severely damaged candidate.

Given that litany of disquieting qualifications, one might wonder why there is a question of over-confidence.  There is a reasonably good chance – perhaps not as certain as some might like – that the Republican Party is on one of those slow-motion cascades to catastrophe in which American politics occasionally engages.  Like 1964 (Goldwater) or 1972 (McGovern), when the more extreme base of the party outmaneuvered the established leadership, 2016 provides a new model in which the established leaders of the party risk losing control not only to a fringe candidate, but to one of two interlopers who have spent the last nine months giving a big Bronx raspberry to the party they aspire to lead.

Should either Donald Trump or Ted Cruz – both anathema to the party regulars – secure the nomination in Cleveland, there is growing anxiety (well deserved, I would argue) that many Republicans would either choose not to vote for President, as some in the party elite have already declared, or would consider voting for Hillary Clinton (especially older Republican women who have expressed just such a surprising intention in private conversations passed along to me).

Should the party rally and figure out a way to deny either Trump or Cruz the nomination despite their formidable delegate counts going into the convention, the party could face massive non-participation or worse, a third party candidacy that could mirror the horrific performance of William Howard Taft in 1912 when challenged by Theodore Roosevelt for the loyalty of Republican voters.

In either scenario, the Republican fear spreads beyond the presidential race to the down ballot impact, with some observers postulating that control of the Senate would likely flip to the Democrats and that even the House majority might be in play. Losing the White House and the Senate could be catastrophic for the GOP, although very good news for Merrick Garland and a few sitting justices of the Supreme Court who might look more favorably on retirement with a Senate and White House in sympathetic hands.

The problem for the Republicans is that the scenario actually gets worse. It is one thing to blow an election, even when all the warning signs are out there, and your primary electorate still plunges along like lemmings to the gaping abyss. But it is another thing altogether to perform so badly in an election that you inflict long-term damage on the party’s viability. That is an outcome that a growing number of Republican strategists fear, and one that could fuel Democratic over-confidence. How much worse has been described by Frank Luntz, the Republican pollster/wordsmith/ strategist who played such a key role in designing the successful Republican messaging strategy until usurped by the Tea Party zealots and now, Trump.

Luntz recently conducted a survey of young voters aged 18-26, a group with notoriously poor electoral participation levels, but who inevitably age into older voters with much higher engagement. It is, however, in their early years that their views on key issues and their identification with political parties are formulated, even if they do not act upon their preferences by casting ballots.

People who engage with young voters intuitively know how different their baseline attitudes are from those of older generations. On issues that proved highly divisive to their elders, including race, gender, abortion, and climate change, the large preponderance of young Americans do not just disagree with the more conservative views of older voters – they don’t even understand why there is an issue to discuss. In some ways, that liberality is not as helpful to Democrats as one might think, because the tolerance woven so intrinsically into younger people also may lead them to view hard-won gains as less endangered by the political process, and thereby not incentivize them to participate in electoral activity. Witness young women’s seeming nonchalance about the historic possibility of a Hillary Clinton presidency.

But this nonpartisan tolerance is unquestionably bad news for Republicans. Luntz’ research confirms the party’s fears about the damage that would result from nominating an intolerant, hard-edged, divisive outsider liked Trump or Cruz. Luntz asked which contemporary political figure these young voters “like and respect the most.” Not surprisingly, many respondents feel the Bern, giving Sanders 31%. President Obama came in second at what I thought was a low 18%, and Hillary Clinton came in third at 11%. As for the Republicans? Trump does the best, but at just 9%. That doesn’t win a lot of elections.

Luntz views the problem as one with very long legs, “a chasm of disconnection that renders every prominent national Republican irrelevant with the voting bloc that could control campaigns for the next 30 years.”  There’s some good historical evidence that Republicans can undercut their longterm viability with extreme positions; after California Gov. Pete Wilson decided to passionately embrace an anti-immigrant initiative in the early 1990s, Latino voters abandoned the GOP and have never returned, leaving the party virtually shut out of state-wide offices ever since.

The disconnect with conservatism extends beyond the GOP’s offering of candidates, however. Luntz was stunned to find that 58% of young Americans believe that socialism is “the most compassionate political system.” Whether they could accurately define “socialism” is another question, of course, but still, that’s a pretty impressive figure in the age of the Tea Party. Another 9% voted for communism.   Capitalism, that progenitor of the American Dream, that economic system of unparalleled opportunity, didn’t do so well: just 33%. Thank Wall Street for poisoning that brand.

Capitalism, however, is doing great compared to the Republican Party. Whereas 44% of the young voters surveyed identified themselves as Democrats, just 15% identify as Republicans. It’s hard to win elections with those numbers, too. And younger Americans aren’t buying the Reagan-esque “city on a hill” story of American exceptionalism either; perhaps hardened by a decade of recession and a decade and a half of war, by constrained economic opportunities or by the divisiveness of government that seems to portray an unworkable political system, 58% believe that “American isn’t any better or worse than most other countries.”

Do these numbers tell us where these young voters will be in ten years, when they are concerned about families, jobs, college tuition, mortgages, and the other accouterments of approaching middle age? Are they even accurate, in the age of flawed polling that is exasperating analysts and observers alike? Certainly, we should be cautious about drawing too many conclusions from any one poll, but the numbers in Luntz’ survey are so egregious that even if they are off by a third, they spell grim news for the Republican Party. Democrats cannot help but be encouraged by the trends, but they better not get too over-confident before November. These young voters may not like the Republican candidates or message, but there’s worrying evidence they might be disinclined to articulate their dissatisfaction at the polls.

The Temptations of the Supremes

Few features of congressional ethics rules exasperate Members of Congress more than the rigid guidelines governing the receipt of virtually anything of value from virtually anybody on the planet. Members live in fear of violating some hazy guideline or obtuse restriction and ending up doing the career-ending perp walk over to the dungeon-like offices of the Ethics Committee.

Since the 1970s, Congress has imposed increasingly rigid constraints on accepting gifts or even meals. From time to time, the restrictiveness can seem inane. Members (and staff) can attend receptions at which hors d’oeuvres are served while standing, but cannot attend a sit-down meal; lobbyists cannot buy even a cup of coffee for a staffer or Member; even gifts from longtime friends might have to be reported. One rejected “reform” proposal would have required Members to wear body cameras to record everyone who spoke with them during the day.

Not that there aren’t good reasons for the kinds of restrictions enacted in the Honest Leadership-Open Government Act of 2007. The preceding year, the Republican leadership of the time, particularly Majority Whip Tom Delay (the power-behind-the-throne of Speaker Denny Hastert) was widely accused of maintaining too cozy relations with lobbyists. One report even asserted that DeLay, who later left Congress under a hail of criminal allegations, allowed lobbyists to operate legislative drafting sessions in the Whip’s office.

Democrats unleashed an unusually effective attack on Republicans, accusing the majority of fostering a “culture of corruption” in the House and Senate. The news media relentlessly echoed the characterization, which Democrats rode to a victory that returned control of both houses of Congress to their control in 2006. Within 100 hours of assuming the chair, Speaker Nancy Pelosi rammed through her entire list of reform bills, including Honest Leadership-Open Government. Public confidence in Congress has since soared.

Well, maybe not, but the charges of corruption have certainly dissipated. However inconvenient or unfair, most Americans agree that there needs to be tight restriction against public officials taking gifts from those with business before them. Which is why it is so curious that comparable constraints do not apply to Supreme Court justices. Those nine paragons of virtue are not covered by any statue or regulation that prevents their acceptance of valuable gifts from benefactors and friends, even those who might have business before the Supreme Court.

Supreme Court justices, like other members of the federal bench, have long been rankled by the fact that their salaries, by law, are linked to the salaries of Members of Congress, who are so notoriously concerned about being criticized for raising their salaries that they negate the automatic raises federal law already grants them. As a result, federal judges also lose their raises, leading members of the judiciary, including Supreme Court justices, to periodically engage in very injudicious lobbying. Congress will not budge on the linkage, and perhaps that is one reason the justices have preserved their special exemption from gift laws that apply to junior legislative assistants.

When I heard last month that Antonin Scalia had died at a Texas hunting lodge, I have to admit I immediately Googled the place to see what the rates were. (Several hundred dollars a night, in case you are thinking of doing some hunting.) I have no doubt Scalia made enough money to afford an occasional domestic safari, but my first thought was: I wonder if someone else was paying his way.

Well, as it turns out, someone was. The trip was underwritten by a 400 year old hunting society known as the International Order of St. Humbertus.   The lodge where Scalia died was owned by society member John Poindexter, who also picked up the tab for 34 other guests who got to hob-nob with Justice Scalia, including C. Allen Foster, a big-time Republican lawyer who has represented the GOP in redistricting cases and defended such stellar companies as Blackwater. (Foster describes his “passion” as “killing things,” including elephants, lions, rhinos and “more than 150,000 birds of various species.” No friend of the much litigated Endangered Species Act, Foster proclaims that “When the last duck comes flying over with a sign around his neck [saying] ‘I am the last duck,’ I will shoot it.”)

There are rules governing gifts to members of the Judicial Branch, but they do not apply to the Supreme Court justices. However, the Judiciary’s own ethical code declares that a judge “should “avoid impropriety and the appearance of impropriety in all activities.” Presumably “all” includes hunting at private ranches courtesy of those who could likely be connected to issues before your court. Still, in 2011, Chief Justice Roberts declared that “while [a]ll members of the Court do in fact consult the Code of Conduct in assessing their ethical obligations … The Court has had no reason to adopt the Code as its definitive source of ethical guidance.” I wonder what standard it does impose as its “definitive source.”

Scalia’s last round-up was far from his only subsidized trip.   The New York Times reported that he admitted accepting 258 subsidized trips between 2004 and 2014. Second on the list was Steven Breyer who took 185 trips during the same period, while Anthony Kennedy clocked in third with 132. Other Justices – Roberts, Thomas and Kagan – were infrequent travelers; Sotomayor took 67 in her 5 years on the bench, Ginsbur 132 in 11 years, and Alito 83 over the same period. We know about these trips in part because Justices are required to disclose reimbursements of greater than $350.

Taking trips at someone’s expense doesn’t disqualify anybody from being a Justice, even a good Justice, but it just might stray a little close to those admonitions about avoiding the “appearance of impropriety.” True, many of the trips are to speak at law schools and other venues on weighty legal matters. Fortunately for Scalia, some of those recent venues include such unlikely locales for law students as Zurich, Ireland and Singapore.

It goes without saying that for the most part, those footing the bill for the fancy trips are those with the bucks to afford them, and to afford the lawyers needed to take cases to the Supreme Court. Often those are business interests, and in the Roberts Court, they have found a warm reception. A recent New Yorker article concluded that the Roberts Court is the second most pro-business of any in the last 70 years, limiting corporate fraud liability, restricting class action law suits and making It more difficult to win employment and gender based discrimination cases. Brian Fitzpatrick, now a Vanderbilt law professor and a former Scalia clerk, credits his former boss as leading the effort to limit lawsuits against business.

Roberts’ rationale for opposing the imposition of gift regulations on the Supremes is the tried and true “separation of powers” argument. The Constitution , he reasons, clearly gives the Congress authority to create the lesser federal courts, but specifically creates the Supreme Court as a unique branch of government. It therefore follows, opines the Chief Justice, that congressional restrictions on the Court’s autonomy would constitute an infringement on the sacred separation of powers. The Executive Branch makes a similar case in opposing Congress’ restriction on presidential power as commander in chief, as in the case of the War Powers Resolution. Even legal scholar Jeffrey Toobin asserts “Justices are allowed to have friends, and they’re allowed to enjoy the hospitality of those friends.”

Now, here’s where the problem occurs. Congressmen and women like to have friends and enjoy their hospitality, too, but they can’t. A $350 “reimbursement”? A Member of the House could find himself facing a reprimand from his or her colleagues (or worse) for accepting a cup of coffee. And yet it is to these Members of Congress that the Justices come, gown in hand, to beg for separation from the pay restrictions that tie their salaries to those of legislators. Good luck.

One of those legislators, Congresswoman Louise Slaughter of New York, the ranking member of the House Rules Committee, has been a vigorous advocate for ending the exemption from gift band for Supreme Court justices. Slaughter notes that Scalia and Thomas were “featured” speakers at numerous “closed-door political fundraising and strategy sessions hosted by Koch Industries,” and the New York Times disclosed that its investigators in 2011 had found that Thomas “may have benefited from use of a private yacht and airplane owned by Harlan Crowe, Dallas real estate magnate and major contributor to conservative causes.” Such trips would be improper if the justices abided by the Code of Conduct that Roberts assures us he believes all Justices “consult.” Perhaps the Justices should limit their freebie talks to speaking to those bar meetings and law school classes and cut out the forays to Zurich and hunting lodges.

Slaughter’s bill would “require the Supreme Court to adopt a code of ethics modeled on the code that has applied to all other federal judges for decades.” Members of Congress are unsurprisingly miffed that they, who could be held accountable by constituents for inappropriate trips, are virtually banned from taking them while justices who never face angry voters exempt themselves from similar constraints. I bet the justices aren’t lobbying Congress to pass the Slaughter bill.

Like the rest of government, approval of the Court, long a mainstay of public trust, has fallen significantly, dropping below 50% for the first time in over thirty years, it was recently reported. Many speculate that diminution of esteem is tied to the seemingly blatant intervention by justices in decisions that reflect their personal political and ideological views, like Citizens United that freed fat cat friends to spending their money uncontrollably on political campaigns, or at least spend whatever money is left after hosting Supreme Court justices to swell visits to comfy resorts. Imposing upon themselves the same restrictions that other judges and legislators must live with might not improve public attitudes towards the Court, but it wouldn’t hurt when they come seeking raises at Congress’ door.

The Irony of Clinton’s Southern Strategy

There are a couple of levels of irony in recognizing that votes from the old Confederacy will likely propel Hillary Clinton to the Democratic presidential nomination. The former Secretary of State’s massive victory in South Carolina last Saturday provided her with a much needed demonstration of her electoral strength, especially among the black voters whose support – and turnout – will be crucial to her chances for victory in November.

South Carolina served to demonstrate the inherent advantages Clinton enjoys in a party that has developed a bedrock foundation of black and brown voters. True, young voters are also a crucial component of the Democratic majority, especially around values issues, and they have favored Bernie Sanders by significant margins during the early primaries and caucuses.   But they are also far less reliable voters, and Sanders’ questionable ability to motivate the minority base could prove a problem in the extreme unlikelihood of his nomination.

Should Clinton replicate her strong showing on Tuesday in the primaries that stretch throughout the South and to a few northern states, the math in favor of her eventual nomination becomes overwhelming, particularly with the steady addition of the party regular superdelegates who have already provided her with a little-noticed but significant majority of delegates.

Clinton’s surge to the nomination, therefore, is likely to occur in states which she – like any Democrat — has virtually no chance of winning in November. Georgia, Tennessee, Texas, Alabama, even Arkansas where she presided as First Lady for a decade: these are states that Democrats have reliably lost in presidential elections for a half century, with a few anomalous exceptions, and in which she stands little to no chance of being competitive this fall. Yes, there are Democratic-leaning states in the Super Tuesday mix as well – Minnesota, Massachusetts and the People’s Republic of Vermont – and the former two are competitive with Sanders, but it will likely be the majorities Clinton runs up in the Old Confederacy that propels her towards victory in the fight for the nomination.

Yet Clinton’s victory in the South, while predicting little about how these states vote in the general election, has a special irony to it. Clinton likes to recall, particularly when campaigning among minority voters, how her earliest job after Yale Law School was with the Children’s Defense Fund, a Washington non-profit that was a key player in legislation promoting the legal and educational rights of minority children in particularly. CDF sent Clinton to what remained, in the 1960s and ‘70s, a region hostile to black voters, although circumstances were improving as a result of the Civil Right Act and the Voting Rights Act of the mid-1960s, and the end of the poll tax due to the XXIVth amendment in 1964.

The politics of these southern states remained nearly as segregated at that time as it had for the preceding 80 years, following the imposition of restrictions on black voting during the Jim Crow era that followed the end of Reconstruction in 1877. While black people often constituted 30% to 40% of a congressional district, restrictions from discriminatory testing to outright intimidation resulted in black voters often making up less than 3% of the voting population of many districts, allowing conservative segregationists to command control of the region’s politics for decades.

Clinton’s foray into the South focused on an important but largely overlooked phenomenon which followed the enforcement of anti-discrimination laws affecting the region’s public schools. While most Americans believe the Brown v. Board of Education decision by the Supreme Court (which then had its full compliment of 9 Justices) ended segregation in public schools, it was not for another 15 years, after a decade and a half of obstruction, that the Court, in Alexander v. Holmes, ordered an immediate end of segregation in public education.

As Jason Sokol noted in his important study, There Goes My Everything, most school districts in the South had blithely ignored or resisted the Supreme Court’s edict in Brown. By 1967, only 14% of the region’s black children attended integrated schools. In the North Carolina school district that brought the case, 14,000 of the 24,000 black students still attended schools that were 99%, if 100%, segregated. The Johnson Administration responded by terminating federal education aid to scores of school districts in the South; two years later, the Supreme Court unanimously (again, 9-0) upheld the use of mandatory school busing to achieve desegregation (which provoked explosive outrages in the North as well as the South).

Southerners responded to the Court’s mandates by creating hundreds of private schools, a large proportion of which were sponsored by the rapidly increasing number of evangelical churches that were simultaneously serving as political bases for the reviving Republican party in the South. These so-called “seg academies” accelerated academic white flight and effectively depopulated many of the region’s public schools of white students.

Churches and their communities rallied to provide the financial assistance many white families needed to allow their children to attend the seg academies, which often kept their fees as low as possible so as not to exclude any white child. “I would go out and collect empty bottles, if necessary, to send [my child] to private school,” one white woman in Yazoo, Mississippi declared. As a result, noted Charles Allen Thompson, Jr., the executive director of the Mississippi Education Association, the segregation strategy “hit every child and parent in the state of Mississippi.”

Hillary Clinton’s early work as a CDF lawyer involved investigating these seg academies to ascertain whether charges of racial segregation could be brought against their operators. Given the rising racial tension of the times, as blacks increasingly registered to vote and flexed their political and legal powers, Clinton’s decision to engage in such potentially hazardous undercover work, as opposed to opting for the cushy corporate job a top Yalie might have landed, speaks to the deep commitment that she now has trouble communicating effectively to voters.

But as the African American voters of South Carolina just demonstrated, and those in Super Tuesday states are likely to affirm, black Americans appear to have little skepticism about Clinton’s commitment and sincerity, and their votes are likely to seal the deal on the nomination soon, if not this week. Donald Trump’s latest controversy, over his unwillingness to dissociate himself decisively from the Ku Klux Klan, is likely to further fuel black voter enthusiasm for the former Secretary of State.

Assuming she makes it to the White House, Clinton will find familiar terrain before her. For as conservatives employed religious-based seg academies in an effort to obstruct compliance with civil rights laws, so now they assert that their religious precepts should insulate them from compliance with the Affordable Care Act. Clinton’s experience with CDF may prove more valuable than she or voters have appreciated.




Strict Obstructionism


Just when it appeared that the 2016 presidential campaign could not possibly become more of a cacophonous contest, Supreme Court Justice Antonin Scalia dies and suddenly, a whole new layer of contention has oozed its way to the surface of the national debate.

President Obama, conservatives assert, is a lame duck and therefore should not appoint a Scalia successor until the people have spoken (assuming one can discern “the people’s” Supreme Court preferences from an election). Obama, noting that one-eighth of his presidency is still before him (three times as long as the longest confirmation process in recent memory, that of Clarence Thomas) intends to exercise his constitutional right to send a nominee to the Senate.

Majority Leader Mitch McConnell and Judiciary Committee Chairman Charles Grassley have already declared they will not allow the Senate to consider any Obama nominee, not even one like Appeals Court Judge Sri Srinivasan, who in 2013 was confirmed in a 97-0 Senate vote that included support from Mitch McConnell, Chuck Grassley, Marco Rubio and Ted Cruz.

The Court is in the midst of considering a slew of highly controversial issues including abortion, health care, and affirmative action. Without a replacement, it is possible that there will not be a majority for either side, and yet one more branch of the American government can move into gridlock!

The debate over whether or not a “lame duck president” has the right to nominate a Court appointee is a ridiculous one.   The Constitution, whose immutable clarity Justice Scalia dedicated his career to defending, was, well, quite clear. It says right there, in Section 2 of Article II of the Constitution that “The President” (I note no references to “lame ducks” or any other fowl) “shall nominate” (not “shall nominate except in the last year of his term”) “Judges of the supreme Court.” Period.

Now, of course, few really believe that the precise words of the Constitution, set down nearly 230 years ago, are to be taken absolutely literally (the late Justice Scalia being an exception). So when strict constructionists like McConnell or Ted Cruz pontificate about why Obama should be precluded from fulfilling his clear constitutional duties, they are revealing their truly mendacious and conniving intentions.

Coincidental to this moment’s focus on strict constructionism is the publication of The First Congress by historian Fergus Bordewich. While strict constructionists like Scalia would have us believe that the words of the Constitution were written by perfect men and venerated even then as immutable truths, the actual history is anything but so idyllic. As Bordewich pointed out, the Constitution – itself the product of exhausted negotiation and compromise – was the skeleton upon which early legislators had to build the actual structure and design of a national government that lacked not only a permanent home, but credibility in the skeptical minds of many who had fought the Revolution. In formulating that structure for the federal government, senators and congressmen of 1789-1790 (as have all since) made countless compromises and concessions to cobble together the votes required (11 in the Senate, 33 in the House) to pass a law. President Washington’s authority to veto a law passed by Congress was even debated; the Supreme Court sat around with nothing to decide since the appellate and district courts did not yet exist. In other words, they were making it up as they went along.

Nothing against the Founding Fathers, but the point is this: it’s kind of ridiculous to assert that we of the 21st century posses some clairvoyance to know how they might have addressed highly complex contemporary issues. They were fabricating a country, and they, of all people, realized the uncertainty with which the finality of their work would be viewed by future generations, which is why they allowed for an amending process. They were cutting deals like a rug dealer during a “going out of business” sale, as all legislators, in all times, must do.

But on this point they were quite clear: the President nominates Supreme Court justices, and the Senate is supposed to consider them: up or down, but not rewrite the intent of the Constitution and obstruct the operations of the third branch of government.

The emergence of this new battle may well have great salience in the campaign. Politicians are always struggling to convince the electorate to pay attention to issues that seem slightly out of focus for the average voter, such as how a presidential contest will affect the composition of the Supreme Court. Scalia’s death, and the coming debate over whether, and with whom, to fill the vacancy, moves the Court issue front and center, impossible to ignore. Indifferent millennials will be shown a powerful lesson about the election’s ramifications for the Court. Issues like abortion rights, gay rights, gun control, health care and others may serve to motivate voters to become more engaged, realizing the outcome of the election unquestionably will impact not only the Scalia seat, but perhaps two or three others that could become open in the next five years.

Secondarily, the debate over whether to consider an Obama appointee may well impact some Senate races. No Republican senator up for re-nomination will dare side with Obama’s right to nominate a replacement as long as he or she may face a primary challenge for such apostasy. Donald Trump honed the team cheer in Saturday’s GOP debate: “I think it’s up to Mitch McConnell and everybody else to stop it: It’s called delay, delay, delay.” I can almost hear James Madison uttering those stirring words.

In general elections, however, such hardline positions could come back to hurt vulnerable GOP senators in states like Ohio, Wisconsin and Pennsylvania, opening them to the charge of excessive partisanship while the Democratic opponent need only ask that the senator do his or her duty and “advise or consent” but not obstruct. Doing so would be the strict obeisance to the Constitution that Antonin Scalia would have endorsed.


Get every new post delivered to your Inbox.

Join 234 other followers