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.