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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Month: February 2016

Political Strategy Notes

At Brookings William Galston sheds light on the ideological value that undergird’s Trump’s enduring strength among Republican voters in opinion polls: “Trump enjoys a large advantage in public support, moreover, despite ranking at or near the bottom on most of the personal characteristics that voters value in prospective presidents–honesty and trustworthiness, caring about people’s needs and problems, sharing their values, and having the right experience. He leads in only one area–strong leadership qualities. It speaks volumes about the current mood among Republicans that the desire for strength appears strong enough to trump all other considerations, even among voters who prize piety and humility.”
Dems can be forgiven a smidgeon of schadenfreude at the utter failure of Jeb Bush’s quest for the GOP nomination, given his role as president’s brother/Governor of Florida in the 2000 election. At Mother Jones Pema Levy’s post, I’ll Be the Judge of That: How Jeb Bush Perpetuated the Sunshine State’s War on Black Voters provides a recap on the effects of ex-felon disenfranchisement in Florida for those who have forgotten: “The 2000 presidential election was ultimately decided by a 537-vote margin in Florida. More than 500,000 ex-felons were barred from the polls, including at least 139,000 African Americans, who vote overwhelmingly for Democratic candidates. Their exclusion almost certainly changed the outcome of the race. The beneficiary, of course, was Jeb Bush’s brother…Under Jeb Bush, Florida undertook a second voter purge–again with a sharp racial skew–in 2004, the next presidential election year. Of the 48,000 people on the second list, 22,000 were black. Just 61 people on the list were Hispanic, at a time when Florida Hispanics, including the Cuban community in Miami, voted solidly Republican. After the media made the list public, and with a potential lawsuit looming, Bush abandoned the purge…According to Edward Hailes, a lawyer with the US Commission on Civil Rights, the number of African Americans wrongfully expunged from the rolls who would have voted for Al Gore was 4,752–nearly nine times greater than the 537 votes that handed George W. Bush the presidency…Ultimately, Bush approved just one-fifth of the 385,522 applications for civil rights submitted during his eight years in office.” Of course felon disenfranchisement was just one element of voter suppression in FL in 2000, in addition to the Brooks Brothers Riot, finagling with voter machines, “lost” registration forms, misinformation and other shenanigans, all under the watch of Governor Jeb Bush.
At The Nation Sean McElwee highlights “The GOP’s Class Divide on Austerity; Even inside the GOP, the working poor don’t support the austerity politics of the party’s elites.” McElwee analyses from the 2012 Cooperative Congressional Election Study of more than 50,000 respondents.
In his weekly Syndicated column, E.J. Dionne, Jr. observes, “A good case can be made — and has been made by progressives throughout Obama’s term — that if Democrats said that everything was peachy, voters who are still hurting would write off the party entirely…But ambivalence does not win elections. Running to succeed Ronald Reagan in 1988, George H. W. Bush triumphed by proposing adjustments in Reagan’s environmental and education policies, but otherwise touting what enough voters decided were Reagan’s successes…Democrats need to insist that while much work remains to be done, the United States is in far better shape economically than most other countries in the world. The nation is better off for the reforms in health care, financial regulation and environmental protection enacted during Obama’s term…If Clinton, Sanders and their party don’t provide a forceful response to the wildly inaccurate and ridiculously bleak characterization of Obama’s presidency that the Republicans are offering, nobody will. And if this parody is allowed to stand as reality, the Democrats will lose.”
Peter Dreier’s post “Nine Battleground States that Could Flip the Senate — and the Supreme Court” at The American Prospect puts the 2016 stakes in clear perspective: “If the Democrats win the Senate and a Democratic president gets to replace Scalia and appoint three other justices, they will cement a liberal majority for at least two or three decades. If either Clinton or Sanders wins the White House, Justices Ginsburg (who will be 83 next year) and Stephen Breyer (78) might retire to allow the president to pick their younger successors. Anthony Kennedy, a conservative who sometimes votes with the court liberals, will be 80 in 2017. If he retires and a Democrat selects his replacement, the court could find itself with a 6-3 liberal majority, with only Chief Justice John Roberts (currently 61 years old) and Justices Clarence Thomas (67) and Samuel Alito (65) remaining to carry the conservative torch. (Two other liberals–61-year-old Sonia Sotomayor and 55-year-old Elena Kagan, both Obama appointees–could remain on the court for another two decades…Even with Roberts remaining as chief justice, a court with a 6-3 liberal majority could have more influence in moving the country in a progressive direction than at any time since Chief Justice Earl Warren led the court between 1953 and 1969.”
Hillary Clinton just got a big boost from 20 unions representing 10 million workers — which means her campaign will soon have more money and manpower. Further, “Exit and entrance polls from the Iowa and Nevada caucuses showed voters from union households favoring Mrs. Clinton over Mrs. Sanders by a roughly 10-point margin — greater than the margin by which Mrs. Clinton won those contests overall,” reports Noam Scheiber at the New York Times.
At The Daily Beast, however, Michael Tomasky observes of Clinton’s NV victory, “this win should mean that Clinton will be able to unite the party without anybody’s flesh being ripped…It now looks like Clinton is going to be the nominee, and that this primary will be over sooner rather than later. She should win nine of 12 Super Tuesday states, and maybe 10; I think she could get Massachusetts, while Sanders holds in Vermont and Minnesota. But barring the email-indictment scenario or some totally unexpected thing (and of course those things could happen!), it’s hard to see a scenario where Sanders could steal away any delegate-rich states. So she seems to be on the way.”
Olivia Nuzzi’s Daily Beast post on the SC results has a headline that will make establishment Republicans wince: “Trump Smirks As Beltway GOP Crumbles.” Nuzzi adds this telling insight: “He did not explain what was historic about the evangelical in the race losing the evangelical vote in a state where –according to an exit poll–73 percent of Republican voters said they consider themselves born-again or evangelical Christians. Trump, whose cursing is part of his stump speech, is on his third wife, admitted on TV that he’d never asked God for forgiveness, and this week got into a fight with The Pope.”
From vocativ.com: 2016_02_21-VoterTurnOutComparisons-JS-R32217983700.png


February 19: Don’t Feed Your Opponents’ Talking Points

Last week I offered some advice to Democrats based on what I perceived to be a weakness exhibited by Sen. Bernie Sanders. This week I’ll do the same with a mistake by the campaign of Hillary Clinton, as I explained at New York:

Those who read this brief “campaign news” story from the New York Times‘ Jason Horowitz early Thursday morning may have missed its significance:

Robby Mook, the Clinton campaign manager, sat at the head of a conference table in the New York office of Clinton donor and Wall Street investor Marc Lasry, according to accounts from people in the room. Joining them for the state-of-the-race conversation over coffee were members of the campaign’s finance steering committee, including Maureen White, the former Democratic National Committee finance chairwoman, Alan Patricof, Michael Kempner, Robert Zimmerman, Betsy Cohen, Jay Snyder and others.
Mr. Mook told the donors that the outcome in Nevada, a state he ran for Mrs. Clinton in the 2008 campaign, was hard to predict and that, depending on turnout, Mrs. Clinton could win by a lot or win or lose by a tiny margin, according to several donors who requested anonymity to discuss the private meeting. But Mr. Mook stressed that the map leaned in Mrs. Clinton’s favor as the race moved to South Carolina, where he was confident she would win, and that she would do well on March 1, when more states voted.

I’m guessing the Times’ ruthless editors took out “Sadly missing the irony” at the beginning of the next sentence:

The collected fundraisers, who for years have bundled checks for Mrs. Clinton’s campaign, listened approvingly as Ms. White, who seemed especially frustrated, expressed bewilderment that the campaign’s mobilization of grassroots support had been eclipsed in the news media by Bernie Sanders’s criticism of Mrs. Clinton as the establishment candidate representing big money …
Donors also voiced some frustration with the lack of media scrutiny of Mr. Sanders, who they said was essentially getting a pass. They pressed Mr. Mook to demonstrate that the Vermont senator’s policy proposals were entirely implausible promises and that his responses to essentially all substantive questions drew on excerpts of his stump speech and rants about the “millionaires and billionaires.”

And here’s the kicker:

One donor also asked Mr. Mook to go after the youth vote. With a straight face, attendees said, the operative took the suggestion under advisement.

Yuk Yuk. Yeah, wish we had thought of that.
Now, anyone who has ever worked for an organization that depends significantly on the largesse of rich and self-important people is familiar with the kind of “input” briefing the Clinton campaign conducted here. It’s mostly a courtesy, and, as in this case, it’s mainly an opportunity for donors to bitch and moan and kvetch and play the amateur political consultant, all the while reminding the unfortunate staffers “briefing” them that they help pay the bills. I’m sure their “advice” to Mook — including the brilliant suggestion that Clinton go after the youth vote — went in one of Mook’s ears and out the other, if indeed he was listening instead of taking peeks at his cell phone. The real problem that should have been anticipated — along with the advisability of meeting in a union hall or the back room of a chain restaurant instead of in a donor’s office on Wall Street — is that some of the donors involved would of course run straight to the Times with the story in order to share with the world their important role in Team Clinton. Robby Mook left Nevada at a critical moment to come brief me, the leak advertised. Suddenly a boring and probably meaningless meeting turned into big oppo fodder for the Bernie Sanders campaign.
And Sanders’s people took the cue. Here’s an excerpt from a Facebook post by the campaign:

Jeff Weaver, campaign manager for Bernie 2016 said, “One of the biggest differences between our campaigns is that Bernie’s campaign does not take its marching orders from Wall Street and big money donors. It’s shameful that the Clinton campaign is parroting attacks at Sen. Sanders that The New York Times has documented come right from her big money backers. Now we are beginning to get a glimpse into what goes on in all those closed door meetings with Wall Street interests.”

I doubt that’s the case, but it’s not like the Clinton campaign can come out and say, This was a dog-and-pony show with no impact on our campaign. So they’ve fed one of the central talking points of the entire Sanders campaign and can only hope it’s a one-day story that everybody forgets.

That may be true, but it’s a bet no campaign can afford to lose. Just ask Bruce Braley, a 2014 Senate candidate from Iowa who never recovered from a video posted by a friend that showed him asking Texas trial lawyers to help him keep “Iowa farmer” Chuck Grassley from chairing the Senate Judiciary Committee.
Optics matter.


Don’t Feed Your Opponents’ Talking Points

Last week I offered some advice to Democrats based on what I perceived to be a weakness exhibited by Sen. Bernie Sanders. This week I’ll do the same with a mistake by the campaign of Hillary Clinton, as I explained at New York:

Those who read this brief “campaign news” story from the New York Times‘ Jason Horowitz early Thursday morning may have missed its significance:

Robby Mook, the Clinton campaign manager, sat at the head of a conference table in the New York office of Clinton donor and Wall Street investor Marc Lasry, according to accounts from people in the room. Joining them for the state-of-the-race conversation over coffee were members of the campaign’s finance steering committee, including Maureen White, the former Democratic National Committee finance chairwoman, Alan Patricof, Michael Kempner, Robert Zimmerman, Betsy Cohen, Jay Snyder and others.
Mr. Mook told the donors that the outcome in Nevada, a state he ran for Mrs. Clinton in the 2008 campaign, was hard to predict and that, depending on turnout, Mrs. Clinton could win by a lot or win or lose by a tiny margin, according to several donors who requested anonymity to discuss the private meeting. But Mr. Mook stressed that the map leaned in Mrs. Clinton’s favor as the race moved to South Carolina, where he was confident she would win, and that she would do well on March 1, when more states voted.

I’m guessing the Times’ ruthless editors took out “Sadly missing the irony” at the beginning of the next sentence:

The collected fundraisers, who for years have bundled checks for Mrs. Clinton’s campaign, listened approvingly as Ms. White, who seemed especially frustrated, expressed bewilderment that the campaign’s mobilization of grassroots support had been eclipsed in the news media by Bernie Sanders’s criticism of Mrs. Clinton as the establishment candidate representing big money …
Donors also voiced some frustration with the lack of media scrutiny of Mr. Sanders, who they said was essentially getting a pass. They pressed Mr. Mook to demonstrate that the Vermont senator’s policy proposals were entirely implausible promises and that his responses to essentially all substantive questions drew on excerpts of his stump speech and rants about the “millionaires and billionaires.”

And here’s the kicker:

One donor also asked Mr. Mook to go after the youth vote. With a straight face, attendees said, the operative took the suggestion under advisement.

Yuk Yuk. Yeah, wish we had thought of that.
Now, anyone who has ever worked for an organization that depends significantly on the largesse of rich and self-important people is familiar with the kind of “input” briefing the Clinton campaign conducted here. It’s mostly a courtesy, and, as in this case, it’s mainly an opportunity for donors to bitch and moan and kvetch and play the amateur political consultant, all the while reminding the unfortunate staffers “briefing” them that they help pay the bills. I’m sure their “advice” to Mook — including the brilliant suggestion that Clinton go after the youth vote — went in one of Mook’s ears and out the other, if indeed he was listening instead of taking peeks at his cell phone. The real problem that should have been anticipated — along with the advisability of meeting in a union hall or the back room of a chain restaurant instead of in a donor’s office on Wall Street — is that some of the donors involved would of course run straight to the Times with the story in order to share with the world their important role in Team Clinton. Robby Mook left Nevada at a critical moment to come brief me, the leak advertised. Suddenly a boring and probably meaningless meeting turned into big oppo fodder for the Bernie Sanders campaign.
And Sanders’s people took the cue. Here’s an excerpt from a Facebook post by the campaign:

Jeff Weaver, campaign manager for Bernie 2016 said, “One of the biggest differences between our campaigns is that Bernie’s campaign does not take its marching orders from Wall Street and big money donors. It’s shameful that the Clinton campaign is parroting attacks at Sen. Sanders that The New York Times has documented come right from her big money backers. Now we are beginning to get a glimpse into what goes on in all those closed door meetings with Wall Street interests.”

I doubt that’s the case, but it’s not like the Clinton campaign can come out and say, This was a dog-and-pony show with no impact on our campaign. So they’ve fed one of the central talking points of the entire Sanders campaign and can only hope it’s a one-day story that everybody forgets.

That may be true, but it’s a bet no campaign can afford to lose. Just ask Bruce Braley, a 2014 Senate candidate from Iowa who never recovered from a video posted by a friend that showed him asking Texas trial lawyers to help him keep “Iowa farmer” Chuck Grassley from chairing the Senate Judiciary Committee.
Optics matter.


Social Media’s Growing Power as an Instrument for Political Education

At The Fix, Philip Bump’s “How the Internet has democratized democracy, to Bernie Sanders’s benefit” sheds light on the power of social media as a force for political education and change. Commenting on the insights of NYU professor Clay Shirky, author of “Here Comes Everybody: The Power of Organizing Without Organizations,” Bump explains:

…The gist is this. The two-party system necessarily can’t encompass every viewpoint. So, to hold parties together, some things became unmentionable. As media options broadened and the press wasn’t acting as gatekeeper, candidates could talk to voters more directly. But they still largely needed the resources of the party in order to get elected, so they still hewed to the rules about what couldn’t be mentioned.
Until 2008, when Barack Obama mastered talking to, fundraising from and turning out a large population.
“Reaching & persuading even a fraction of the electorate used to be so daunting that only two national orgs could do it,” Shirky wrote. “Now dozens can. This set up the current catastrophe for the parties. They no longer control any essential resource, and can no longer censor wedge issues.” The result, he says, is the “quasi-parlimentarianism” of the moment: The Democratic Party, the Republican Party, the Trump Party and the Sanders Party, all vying for power and the presidency…Trump and Sanders can ignore the established parties by talking directly to the voters.

Thanks to the internet and social media, now candidates can define their political personas without as much help from their respective political parties. The “Internet has “democratiized democracy,” as Bump puts it.
The other factor referenced by Bump is cell phones. Bump quotes from Jill LePore’s New Yorker article describing a recent rally for Hillary Clinton:

The instant Clinton began speaking, dozens of arms reached high into the air, all across the room, wielding smartphones. It was like watching a flock of ostriches awaken, the arms their necks, the phones their heads, the red recording buttons their wide, blinking eyes.

Bump adds, “That ceaseless documentation of the moment made individuals in the crowd often indistinguishable from reporters…The media has a role, as do the political parties. The role of each was once to serve as gatekeeper. Now, the role is often to serve as bullhorn.”
Trump’s TV presence surely fueled his success as a GOP presidential candidate. He began his white house run with name recognition few political leaders could hope to match. Plus, he understood how to leverage media to get free publicity worth millions of dollars.
A few weeks ago, I noted that, with respect to advertising,

Online ad share is growing fast. But broadcast television still rules, when it comes to ad budgets and is projected to account for about $8.5 billion of the $11.4 total ad spending for 2016, compared to about $1 billion for digital media, according to Issie Lapowsky, writing in Wired. But Larry Grisolano, who supervised political ads for the 2008 and 2012 Obama campaigns, predicts that in 2016 presidential campaigns will allocate “nearly a quarter of their spending to digital media.”

Yet, it’s not as much about the ads, as peer contact and sharing in social media, particularly facebook, which is so easy to use and where anyone can share print, video and photos. You can’t do that in newspapers and TV.
A well-circulated YouTube clip likely meets more persuadable eyeballs than the most carefully-crafted letter to the New York Times. Peer to peer contact is critical for enhancing voter turnout. But it’s also important for forming and changing political attitudes.
The success of the Sanders campaign owes much to social media. Sanders does not have a flashy TV persona, as does Trump, and to a lesser extent, Clinton. His sincerity comes across well on television. But his more effective tool is social media, which helps to explain his soaring popularity with younger voters.
A candidate can get a lot of bang for the buck recycling YouTube clips on facebook and other social media to reach younger voters. Democrats seem to have more leverage with these tools at the moment. I’m seeing a vigorous debate between Clinton and Sanders followers on facebook and twitter.
Hillary Clinton can be an extremely effective communicator, frequently comes across as the most knowledgeable candidate in televised debates, and generally does well in TV, radio and print interviews. But the Clinton campaign has some catch-up to do to reach the youth demographic on social media.
One of the best things about social media is that it can’t be smothered by the Koch brothers or any other wealthy conservative financiers. A staged political ad is always going to have less cred with swing voters than a heartfelt share on fb. This may come in handy in the final weeks of the general election.


Political Strategy Notes

Senate Republicans still divided over strategy for an Obama court nominee” by WaPo’s Mike DeBonis and Juliet Eilperin updates the GOP’s SCOTUS battle plans.
NYT’s Upshot staff posts a round-up, “Where the Senate Stands on Nominating Scalia’s Supreme Court Successor.
GOP icon former Justice Sandra Day O’Connor urges Republican leaders to “get on with it” and “And I wish the president well as he makes choices and goes down that line. It’s hard.”
The Upshot’s Tony Monkovic explains “Clinton, Sanders and the Underrated Power of the Black Voter.”
Professor Yoav Fromer writes in his Washington Post op-ed, “It’s fair for Democrats to press Sanders on how, exactly, he intends to achieve his “political revolution.” What is unfair is to dismiss his policies outright because they seem too far from the mainstream. Concepts from the left fringe have, throughout American history, served as corrective rather than destructive devices. Instead of smashing institutions, these ideas have mostly provided a moral compass for repairing them; many radical-worker, populist, progressive and even socialist ideas didn’t necessarily undermine the mainstream Democratic agenda as much as reorient it toward more urgent and just directions. Sanders’s push to fix a rigged economy and curtail campaign cash may shape the future Democratic agenda, regardless of whether he gets the nomination. (Clinton’s attempt to brandish her anti-Wall Street credentials shows that this shift has already begun.)…There is little doubt that Clinton’s pragmatic sensibility is invaluable for getting things done. But the revolutionary tradition in which Sanders stands can make sure they get done for the right reasons. In this way, the center and the fringe are symbiotic. Ideology is a terrible tool for governing but a necessary reminder of what government is for.”
At Salon.com Elias Isquith has an interview with Stan Greenberg on the topic of current political attitudes of millenials.
At Daily Kos Kerry Eleveld reports “GOP campaigns prep for worst-case scenario: A brokered national convention.”
Ignore the white working class at your peril, political parties” writes Ron Grossman in a Newsday op-ed.
Only an Obama can go to Cuba, the first president to do so since Coolidge in 1928.


February 17: SCOTUS Not Just for Activists Any More

There have been many valuable discussions here at TDS and elsewhere about the significance of the opening on the U.S. Supreme Court after the death of conservative Justice Antonin Scalia. But there’s one aspect of the impending fight over Scalia’s successor that needs to be emphasized: the timing could make the shape of SCOTUS a big, mainstream presidential campaign issue for the first time ever. I wrote about this possibility for New York:

SCOTUS appointments have always been a big deal to liberal and conservative activists, particularly those focused on issues where constitutional law has had an important impact, such as abortion, civil liberties, federalism, and the regulation of businesses. That’s especially true with respect to the Court that Scalia’s death unsettled, where four consistently liberal justices were balanced by three-to-five conservatives, depending on where Chief Justice John Roberts and Justice Anthony Kennedy were on any given case. A recent string of 5-4 splits has heightened the atmosphere of uncertainty, with decisions pending on affirmative action, climate-change regulations, the president’s ability to control immigration prosecutions, and a new wave of state abortion restrictions. With the Court now requiring 5-3 margins to overturn lower-court decisions, and three other justices (two liberals and the conservative/swing Justice Kennedy) over the age of 75, the current presidential-election cycle is rapidly becoming one of the most portentous ever in terms of the future shape of constitutional law.
The balance of the court is especially critical to conservatives stricken by Scalia’s death and fearful that their hopes of a truly and systematically conservative Court are in danger of slipping away. But it’s important to understand the other factor that ratchets up conservative anxiety over Court appointments to a high-pitch chattering whine: a legacy of betrayal by Republican-appointed justices. The best way to illustrate it is this: In 1992, the last time the Court had an opportunity to reverse Roe v. Wade, the decision that legalized abortion nationally, all five justices who voted to save Roe (O’Connor, Kennedy, Stevens, Souter, and Blackmun) had been appointed by Republican presidents.

This is largely why Ted Cruz is already out there arguing that the entire presidential campaign should be a “referendum” on SCOTUS. But there are other factors that could make Court appointments go viral:

The frequency and intensity of talk about the Supreme Court being the ultimate prize in Campaign 2016 will help it to spill over from the usual backstairs talk of activists into the broader public arena. Four other factors should virtually guarantee it: (1) President Obama’s decision to move ahead with an appointment, which he will then use to dramatize Republican obstruction, as the Senate refuses to hold hearings or a confirmation vote; (2) the likelihood that attitudes towards the Court and the Senate’s confirmation powers will become issues in close Senate races in presidential battleground states like Pennsylvania and Florida; (3) the paralysis of the Court in key cases where, absent Scalia or a successor, SCOTUS will split 4-4; and (4) the prevailing conventional wisdom that the 2016 contest will be a “base mobilization” rather than a “swing-voter persuasion” election, making highly emotional issues like abortion, guns, money-in-politics, and climate change much more prominent.

The issue is not going to go away any time soon, however:

It is not clear, however, that the election will resolve the Court deadlock. No matter who controls the Senate next year, the minority party will have the power to stop Supreme Court confirmations via the filibuster (unless the majority party extends to SCOTUS the “nuclear option” Harry Reid utilized in 2011 to end filibusters over lower-court and executive-branch confirmations, a fateful step that could, of course, backfire when shoes are on different feet). A campaign year of escalating and mutually reinforcing promises to hang very tough on the Court could all but eliminate the possibility of compromise.
So get used to the new reality: Fights over SCOTUS probably aren’t just for activists any more. Scalia’s replacement, if and when confirmed, could represent the definitive triumph of one vision of the Constitution over another.

And it’s likely we’ll all know it.


SCOTUS Fight Not Just For Activists Any More

There have been many valuable discussions here at TDS and elsewhere about the significance of the opening on the U.S. Supreme Court after the death of conservative Justice Antonin Scalia. But there’s one aspect of the impending fight over Scalia’s successor that needs to be emphasized: the timing could make the shape of SCOTUS a big, mainstream presidential campaign issue for the first time ever. I wrote about this possibility for New York:

SCOTUS appointments have always been a big deal to liberal and conservative activists, particularly those focused on issues where constitutional law has had an important impact, such as abortion, civil liberties, federalism, and the regulation of businesses. That’s especially true with respect to the Court that Scalia’s death unsettled, where four consistently liberal justices were balanced by three-to-five conservatives, depending on where Chief Justice John Roberts and Justice Anthony Kennedy were on any given case. A recent string of 5-4 splits has heightened the atmosphere of uncertainty, with decisions pending on affirmative action, climate-change regulations, the president’s ability to control immigration prosecutions, and a new wave of state abortion restrictions. With the Court now requiring 5-3 margins to overturn lower-court decisions, and three other justices (two liberals and the conservative/swing Justice Kennedy) over the age of 75, the current presidential-election cycle is rapidly becoming one of the most portentous ever in terms of the future shape of constitutional law.
The balance of the court is especially critical to conservatives stricken by Scalia’s death and fearful that their hopes of a truly and systematically conservative Court are in danger of slipping away. But it’s important to understand the other factor that ratchets up conservative anxiety over Court appointments to a high-pitch chattering whine: a legacy of betrayal by Republican-appointed justices. The best way to illustrate it is this: In 1992, the last time the Court had an opportunity to reverse Roe v. Wade, the decision that legalized abortion nationally, all five justices who voted to save Roe (O’Connor, Kennedy, Stevens, Souter, and Blackmun) had been appointed by Republican presidents.

This is largely why Ted Cruz is already out there arguing that the entire presidential campaign should be a “referendum” on SCOTUS. But there are other factors that could make Court appointments go viral:

The frequency and intensity of talk about the Supreme Court being the ultimate prize in Campaign 2016 will help it to spill over from the usual backstairs talk of activists into the broader public arena. Four other factors should virtually guarantee it: (1) President Obama’s decision to move ahead with an appointment, which he will then use to dramatize Republican obstruction, as the Senate refuses to hold hearings or a confirmation vote; (2) the likelihood that attitudes towards the Court and the Senate’s confirmation powers will become issues in close Senate races in presidential battleground states like Pennsylvania and Florida; (3) the paralysis of the Court in key cases where, absent Scalia or a successor, SCOTUS will split 4-4; and (4) the prevailing conventional wisdom that the 2016 contest will be a “base mobilization” rather than a “swing-voter persuasion” election, making highly emotional issues like abortion, guns, money-in-politics, and climate change much more prominent.

The issue is not going to go away any time soon, however:

It is not clear, however, that the election will resolve the Court deadlock. No matter who controls the Senate next year, the minority party will have the power to stop Supreme Court confirmations via the filibuster (unless the majority party extends to SCOTUS the “nuclear option” Harry Reid utilized in 2011 to end filibusters over lower-court and executive-branch confirmations, a fateful step that could, of course, backfire when shoes are on different feet). A campaign year of escalating and mutually reinforcing promises to hang very tough on the Court could all but eliminate the possibility of compromise.
So get used to the new reality: Fights over SCOTUS probably aren’t just for activists any more. Scalia’s replacement, if and when confirmed, could represent the definitive triumph of one vision of the Constitution over another.

And it’s likely we’ll all know it.


Strategic Considerations of Potential SCOTUS Nominees

It would be hard to overstate the importance of who will be the next justice in the evenly-divided U.S. Supreme Court. President Obama’s nominee could have a profound impact on both the politics of 2016 and the shape of social and economic progress well into the future.
In his post, “The Simply Breathtaking Consequences Of Justice Scalia’s Death” at ThinkProgress, Ian Milhiser notes that the Supreme Court’s docket includes major cases addressing immigration, abortion, birth control, unions, redistricting, affirmative action and the environment. That’s just the short run. In the-too-distant future, the Court will render decisions that could reverse the Citizens United decision, support gun control and strengthen consumer protection, to name a few possibilities.
At this writing it seems highly unlikely that the President’s nominee will be confirmed by the present U.S. Senate. As SCOTUSBlog publisher Tom Goldstein recently put it,

The bottom line is that President Obama’s nominee is not getting confirmed before the election. Maybe there will be a permanent filibuster. Maybe Republicans will nominally allow the filibuster to be “broken,” then proceed to reject the nominee on the merits. (That course is suggested by the announcement by Senator Chuck Grassley, chairman of the Senate Judiciary Committee, that he would await a nomination before deciding whether to hold hearings.) Maybe a couple of Republicans who have specific concerns in purple states will even vote for the nominee. But the entire process will be crafted to ensure that the nominee is not confirmed.

Goldstein is likely correct. But there remains a possibility, that once the President submits his nominee, purple state Republican senators will have second thoughts about serving as collateral damage in a Democratic landslide resulting from Trump being nominated.
Up till now, Republicans have gotten a fairly easy ride on their policy of knee-jerk obstruction of all things Obama and Democratic. The coming SCOTUS battle will up the stakes considerably, perhaps to the point where even low-information voters get it that GOP really does stand for “Gridlock, Obstruction and Paralysis.” Not a brand that offers much hope for the future.
Further, there are some cracks in the GOP’s obstructionist wall. As Emily Atkin notes at ThinkProgress:

[Ron} Johnson is the latest Republican senator to suggest that his colleagues should at least consider an Obama-nominated replacement for Scalia, breaking with the hard-line position of McConnell. On Tuesday morning, Sen. Thom Tillis (R-NC) warned that his colleagues should not automatically block any nominee, saying the party risks “[falling] into the trap of being obstructionists.” Sen. Chuck Grassley (R-IA), who chairs the Senate Judiciary Committee, has not ruled out holding committee hearings on Obama’s pick. And Sen. Rand Paul (R-KY) has said he would “look at” a nominee put forward by Obama…While most Senate Republicans have sided with McConnell’s decision not to hold any hearings, not everyone has been outwardly supportive. Sen. Susan Collins (R-ME), for example, recently said that all Supreme Court nominees deserve “in-depth consideration given the importance of their constitutional role and their lifetime tenure.”

It has been argued that the President could make a recess appointment, who could serve without confirmation until the next congress convenes. Veteran High Court reporter Lyle Denniston observes at SCOTUSBlog,

…Less than two years ago, the Supreme Court severely narrowed the flexibility of such temporary appointment power, and strengthened the Senate’s capacity to frustrate such a presidential maneuver.
It is true that one of the Justices regarded as a giant on the Court’s history, William J. Brennan, Jr., actually began his lengthy career with just such a short-term appointment. The chances of that happening again today seem to have diminished markedly.
..Could President Obama make a nominee during that recess? Only if the Senate is taking a recess lasting longer than three days, and does not come in from time to time during that recess to take some minimal legislative action. Both of those circumstances would be entirely within the Senate’s authority.
In that circumstance, a recess appointment to the Court would not be within the terms of the Constitution, as spelled out in Article II.

In that context, a recess appointment could be more than a little problematic, with lots of distracting side-battles. With that in mind, the President still has another way to get his appointee confirmed. It would just take longer. He could appoint a highly-qualified candidate, who gains the wholehearted endorsement of both Democratic presidential candidates. The SCOTUS nominee might be blocked from confirmation in this session, but could have added leverage in the next session, with a new president and Senate.
Some of the potential candidates who have been suggested:
Judge Jane Kelly, age 41 – Tom Goldstein notes, “Eighth Circuit Judge Jane Kelly, who was confirmed by a vote of ninety-six to zero, with the strong support of Senator Grassley. So she will almost certainly be a serious candidate.” But she has served on that court for 2 years.
Attorney-General Loretta Lynch, age 55 – “…Her confirmation vote in the Senate was close (because of Republican votes), so the administration could not make the point that she had been uniformly supported in the past…” But the Republicans could delay her by asking for all sorts of documents pertaining to her tenure as Attorney General, another problematic distraction.
Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia Age 45 — “She was confirmed by without any Republican opposition in the Senate not once, but twice,” notes Goldstein, who thinks she would have a good chance of ultimately being confirmed. She has impressive academic credentials and clerked with Supreme Court Justice Stephen Breyer. However, adds Goldstein, “Judge Brown Jackson’s credentials would be even stronger if she were on the court of appeals rather than the district court and if she had been a judge for longer than three years.”
Paul J. Watford – Age 48, is a highly respected Ninth Circuit judge who was confirmed by a 61-34 vote. But he has only served for 3 years. He clerked with Justice Ginsburg and was supported by conservative legal scholars, as well as progressives.
D.C. Circuit Judge Sri Srinivasan, age 47 — Described by Goldstein as “almost a lock to get a Supreme Court appointment in a Democratic administration, because he is so very widely respected and admired. If it were possible to select a consensus candidate whom Republicans would actually confirm, he would surely be it…He also has the great advantage of having been unanimously confirmed.” However, notes Goldstein, he “generates very little political advantage” in the context of 2016 electoral politics.
Judge Merrick Garland, DC Circuit Court, age 63 – “He’s considered a judicial moderate,” notes Michael Tomasky, “and back in 2010, Republican Sen. Orrin Hatch, always a big player in Supreme Court deliberations, said that Garland would be confirmed for the high court on a bipartisan basis, “No question.”
Sen. Elizabeth Warren, age 66 – Popular and respected, it’s easy to picture her as a great Supreme Court justice. But her confirmation would mean that Democrats could lose a Senate seat, since Massachusetts has a Republican governor who would appoint her successor. Frequently-cited as a possible presidential candidate in the future, she more likely has higher aspirations. This looks like a non-starter.
These are just some of the names that have been mentioned as possible short-list nominees. But no one should be surprised if the unique politics of 2016 produces a wild card nominee. The race of the eventual nominee could be a factor in how voters perceive the way they were treated by the Republicans. Perceived ideology will surely influence some confirmation votes.
Expect some ferocious political chess surrounding the Supreme Court vacancy over the coming weeks. Regardless of who is eventually nominated by President Obama, however, Democrats are in very good shape for restoring a progressive majority to the Supreme Court.


Creamer: GOP Obstruction of High Court Nomination — Radical, Unprecedented and Reckless

The following article by Democratic strategist Robert Creamer, author of Stand Up Straight: How Progressives Can Win, is cross posted from HuffPo:
Just when you thought that the fringe right-wing politicians who have taken over the Republican Party couldn’t veer any further out of the American political mainstream, they prove once again that they are willing to discard any democratic institution or constitutional principle that stands in their way.
In fact, for all their talk of “original intent” or strict adherence to the rule of law, or the language and spirit of the Constitution, they couldn’t give a rat’s back end when their radical right wing agenda is in jeopardy.
Without even waiting to see whom the President would nominate to the Supreme Court to succeed the late Justice Antonin Scalia, the Senate GOP leadership has announced that they will reject any Obama appointment. Wouldn’t matter to them, they say, if the nominee had the qualifications of say, Abraham Lincoln, the founder of the Republican Party.
No they say, in the words of that legal genius Marco Rubio, “There comes a point in the last year of the president, especially in their second term, where you stop nominating, or you stop the advice and consent process.” Rubio wants to wait until a new President is elected — which, of course, he hopes will be him.
GOP leaders claim there is “no precedent” for confirming a Supreme Court nominee in an election year. That is empirically wrong.
Actually, Marco, there is no point in time when, under the Constitution — or historically — Presidents stop nominating.
In fact, six Justices have been confirmed in presidential election years, including three Republicans. And another 11 have been confirmed in non-Presidential election years.
Most recently, Justice Kennedy, a Reagan appointee, was confirmed by a Democratic-controlled Congress in February 1988.
It would be completely irresponsible to let a vacancy on the Court extend into 2017. If the Senate fails to act, the Supreme Court will go for well over a year — stretching over two terms of the Court, with a vacancy.
That would be unprecedented for the modern Supreme Court. In fact, since 1980, Congress has almost never left any vacancy during a single Supreme Court session — and there has never been a vacancy spanning more than one term.
In fact, there has never been a vacancy for longer than four months during a single Supreme Court session.
The President has a Constitutional responsibility to appoint successors for vacancies on the Supreme Court. And the Senate has the Constitutional responsibility to consider those nominees.
Since 1980, there have been 12 appointments to the Supreme Court. Every one of these has been given a prompt hearing and vote within 100 days. There are 340 days left in President Obama’s term of office — plenty of time for nominees to be approved.
And it’s worth noting that the previous 11 times that the Senate has confirmed a Supreme Court justice nominated by a president of the opposite party, it’s been Democrats confirming Republicans. They include Justices Clarence Thomas, David Souter, Anthony Kennedy, John Paul Stevens, William Rehnquist, Lewis Powell, Harry Blackmun, Charles Whitaker, William Brennan, John Marshall Harlan and Chief Justice Warren Burger.


Political Strategy Notes

At The New York Times Jennifer Steinhauer explains why Senate Majority Leader “Mitch McConnell’s Stance in Confirmation Fight Could Help and Hurt G.O.P.,” noting that a substantial number of significant cases coming up are likely to provoke a close vote by the Supreme Court. Says Steinhauer, “Every deadlocked 4-to-4 decision will spotlight the Senate’s inaction.”
“My hunch is that Obama will try to put the Republicans’ obstructionism in sharp relief by offering a nominee who has won support and praise from GOP senators in the past. Three potential candidates who fit these criteria and won immediate and widespread mention were Merrick Garland and Sri Srinivasan, both judges on the U.S. Court of Appeals for the District of Columbia, and Jane Kelly, a judge on the 8th Circuit. (I should note that Garland is a dear friend of long standing.)…The partisan outcome of this year’s election just became far more important. This fall, Americans will not just be picking a new chief executive. They will be setting the course of the court of last resort for a generation.” — from E. J. Dionne, Jr.’s Washington Post column
Michael Tomasky makes a case that President Obama should nominate an extremely well-qualified Mexican-American jurist, Tino Cuellar. Having Republican Senators squirming in the spotlight as bigoted obstructionists, says Tomasky, could hammer the GOP’s percentage of the Latino vote in November down to the teens — which improves the chance for a Democratic landslide in November.
John Nichols notes at The Nation that in Saturday’s Republican presidential debate Sens. Ted Cruz and Marco Rubio either demonstrated a disturbing ignorance of recent Supreme Court history, or worse a deliberate distortion of the facts. As John Nichols explains in The Nation, “Cruz said, “We have 80 years of precedent of not confirming Supreme Court Justices in an election year.”…The debate moderator, John Dickerson of CBS News, pointed our that Supreme Court Justice Anthony Kennedy was confirmed in 1988…”No,” replied the know-it-all senator, “Kennedy was confirmed in ’87.”..”He was appointed in ’87, confirmed in ’88,” said Dickerson.” Nichols points out that Rubio incorrectly asserted that “it’ been 80 years since a “lame duck president” appointed a Supreme Court justice.”
Politico’s Kevin Robillard explains how “Scalia death raises stakes in battle for Senate control” and quotes a likely soundbite for Dems: “”It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat,” said retiring Senate Minority Leader Harry Reid, whose seat in Nevada is one of the battlegrounds of 2016. “Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential Constitutional responsibilities.”
At The New Yorker, John Cassidy asks, “Will the G.O.P. Response to Antonin Scalia’s Death Hand the Election to the Democrats?” Cassidy explains, “If you were a Democratic strategist trying to maximize turnout, what would you most like to see? One possibility, surely, is the prospect of the election being transformed into a referendum on the President versus the do-nothing Republican Congress.”..”Well, the Senate GOP might just have ensured the Obama coalition turns out in 16,” David Plouffe, a former senior adviser to the President, tweeted on Saturday evening.
In her NYT op-ed, “Not Their Mother’s Candidate,” Susan Faludi ponders the “feminist generation gap” and how it is playing out in the 2016 presidential election. Faludi,. author of “Backlash: The Undeclared War Against American Women,” observes “Fueled by the force multiplier of Madeleine Albright’s “special place in hell” quote the next day, the feminist family feud now threatens to engulf a presidential campaign. Women under 30 in New Hampshire went for Mr. Sanders 4:1, while women 65 and older sided nearly 2:1 with Hillary Clinton…That the Democratic agenda, so singularly important to women, could be scuttled by a slugfest between generations of like-minded women is a tragedy we can’t afford.”
Steve Phillips, author of “Brown is the New White,” quoted from his interview by Janell Ross in the Washington Post: “In 2012, Democrats and progressives spent $2.7 billion on political campaigns, and that’s just at the federal level. Since 46 percent of Democratic voters are people of color, roughly half of all political spending should target voters of color — hiring of staff, running ads, organizing and mobilizing voters. We need to take advantage of technological tools that enable us to examine campaign-spending reports. For instance, ProPublica has developed an excellent new tool called Campaign Finance API. We then need to use social media to shine a light on how campaigns are doing, and whether they are spending their money right. …After so many years of focusing on and chasing after white swing voters, many cannot conceptualize or comprehend a reality in which white people are not the most important voters to prioritize…Minnesota Congressman Keith Ellison (D) has proved that a sophisticated, culturally competent voter mobilization can actually increase voter turnout in mid-term elections, and he has done so at the same time as voter turnout plummeted in Minnesota and around the country. His program eschewed the typical 30-second television ads targeting white swing voters and instead hired organizers to talk to and mobilize Latinos, renters, black church-goers and African immigrants.”
In his article at The Guardian, “Republican debate in South Carolina: 10 things we learned,” Nicky Woolf has a funny take on the GOP presidential wannabees debate Saturday night. Woolf’s subtitle “Donald Trump bullied Jeb Bush, Ben Carson (mis)quoted Stalin, Ted Cruz attempted to speak Spanish and John Kasich said what we were all thinking” provides a sense of the flavor. But my favorite is #6: “Jeb Bush said he’d moon someone, but it is relatively unclear whom, and whether he ever went through with it.”