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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Ed Kilgore

February 9: Another Blow to Voting Rights and Gerrymandering Reform From SCOTUS

The conservative majority of the U.S. Supreme Court outdid itself this week, and not in a good way, as I explained at New York:

In an order that will have significant short-term and long-term effects on voting rights, redistricting and racial-gerrymandering laws, five conservative U.S. Supreme Court justices set aside a lower-court ruling that would have forced Alabama to draw a congressional map for the next decade that better reflects the state’s demographics.

The facts of the case are clear and uncontested: Last year, the Republican-controlled Alabama legislature drew the state’s new congressional map to provide six majority-white (and sure to be Republican) districts and one majority-Black (and sure to be Democratic) district even though 27 percent of Alabama’s population is Black and concentrated in a way that would easily accommodate a second majority-Black district. On January 24, a three-judge federal district court panel (including two judges appointed by Donald Trump) unanimously held that the map violated Section 2 of the Voting Rights Act of 1965 based on existing Supreme Court precedents, and it ordered the legislature to substitute one of the many available maps with two majority-Black districts for its tainted plan.

But now the Supreme Court has granted Alabama’s “emergency” appeal to reimpose its original map. As is generally the case in such “shadow docket” decisions (rulings on time-sensitive petitions when the Court is not in session or when circumstances won’t permit full briefings, oral arguments, and deliberations), the rationale for the action of the majority isn’t clear. Three conservative justices (Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett) silently concurred, while two (Brett Kavanaugh joined by Samuel Alito) filed a concurring opinion heavily emphasizing the so-called Purcell doctrine, which discourages federal-court interventions in such cases too close to elections. The Court’s three liberal justices (Stephen Breyer, Sonia Sotomayor, and Elena Kagan) joined in a dissent written by Kagan arguing that the district-court decision gave the legislature plenty of time to comply before Alabama’s May primary date and accusing the majority of covertly reversing Voting Rights Act precedents to let Alabama (and probably other southern states) get away with racial gerrymandering:

“Today’s decision is one more in a disconcertingly long line of cases in which this Court uses its shadow docket to signal or make changes in the law, without anything approaching full briefing and argument. Here, the District Court applied established legal principles to an extensive evidentiary record. Its reasoning was careful — indeed, exhaustive — and justified in every respect. To reverse that decision requires upsetting the way Section 2 plaintiffs have for decades — and in line with our caselaw — proved vote-dilution claims.”

But the most striking opinion published by the Court was a separate dissent filed by Chief Justice John Roberts, the author of landmark decisions gutting a key enforcement provision of the Voting Right Act (Shelby County v. Holder in 2013) and restricting federal-court jurisdiction over partisan gerrymandering (Ruccho v. Common Cause and Lamone v. Benisek in 2019). You’d think he might be eager to further erode Voting Rights Act enforcement in redistricting cases, and you might be right. But he concluded that such a new departure in the law would require a full review with oral arguments since “the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction.” Thus, he said, the 2022 elections should proceed under the requirement that the Alabama legislature create a second majority-Black district, a decision that could in theory be reversed for subsequent elections.

Robert’s dissent makes the brazenness of the majority ruling pretty plain notwithstanding Kavanaugh’s rationalization about the lower court’s tardiness (caused, of course, by the Alabama legislature itself). It most obviously cost Black voters in Alabama (and, for that matter, Democrats) a majority-Black House seat in 2022 — and probably for the rest of the decade — and short-circuited what many experts anticipated would be court orders adding majority-Black House seats in Louisiana, South Carolina and possibly even Georgia.

From a longer-term perspective, Roberts’s concurrence shows he is probably ready to join the majority in this case in further restricting grounds for the application of the Voting Rights Act to redistricting decisions once this or a similar case comes back to the Court for full consideration. And as election law expert Rick Hasen notes, the Supreme Court continues to expand the shadow docket by adopting Kavanaugh’s expansive interpretation of the Purcell doctrine “on steroids” to “shut down important election law changes” by lower federal courts. It’s all pretty bad news for voting rights and for federal-court review of elections at a time when clarity and fairness are badly needed.


Another Blow to Voting Rights and Gerrymandering Reform From SCOTUS

The conservative majority of the U.S. Supreme Court outdid itself this week, and not in a good way, as I explained at New York:

In an order that will have significant short-term and long-term effects on voting rights, redistricting and racial-gerrymandering laws, five conservative U.S. Supreme Court justices set aside a lower-court ruling that would have forced Alabama to draw a congressional map for the next decade that better reflects the state’s demographics.

The facts of the case are clear and uncontested: Last year, the Republican-controlled Alabama legislature drew the state’s new congressional map to provide six majority-white (and sure to be Republican) districts and one majority-Black (and sure to be Democratic) district even though 27 percent of Alabama’s population is Black and concentrated in a way that would easily accommodate a second majority-Black district. On January 24, a three-judge federal district court panel (including two judges appointed by Donald Trump) unanimously held that the map violated Section 2 of the Voting Rights Act of 1965 based on existing Supreme Court precedents, and it ordered the legislature to substitute one of the many available maps with two majority-Black districts for its tainted plan.

But now the Supreme Court has granted Alabama’s “emergency” appeal to reimpose its original map. As is generally the case in such “shadow docket” decisions (rulings on time-sensitive petitions when the Court is not in session or when circumstances won’t permit full briefings, oral arguments, and deliberations), the rationale for the action of the majority isn’t clear. Three conservative justices (Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett) silently concurred, while two (Brett Kavanaugh joined by Samuel Alito) filed a concurring opinion heavily emphasizing the so-called Purcell doctrine, which discourages federal-court interventions in such cases too close to elections. The Court’s three liberal justices (Stephen Breyer, Sonia Sotomayor, and Elena Kagan) joined in a dissent written by Kagan arguing that the district-court decision gave the legislature plenty of time to comply before Alabama’s May primary date and accusing the majority of covertly reversing Voting Rights Act precedents to let Alabama (and probably other southern states) get away with racial gerrymandering:

“Today’s decision is one more in a disconcertingly long line of cases in which this Court uses its shadow docket to signal or make changes in the law, without anything approaching full briefing and argument. Here, the District Court applied established legal principles to an extensive evidentiary record. Its reasoning was careful — indeed, exhaustive — and justified in every respect. To reverse that decision requires upsetting the way Section 2 plaintiffs have for decades — and in line with our caselaw — proved vote-dilution claims.”

But the most striking opinion published by the Court was a separate dissent filed by Chief Justice John Roberts, the author of landmark decisions gutting a key enforcement provision of the Voting Right Act (Shelby County v. Holder in 2013) and restricting federal-court jurisdiction over partisan gerrymandering (Ruccho v. Common Cause and Lamone v. Benisek in 2019). You’d think he might be eager to further erode Voting Rights Act enforcement in redistricting cases, and you might be right. But he concluded that such a new departure in the law would require a full review with oral arguments since “the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction.” Thus, he said, the 2022 elections should proceed under the requirement that the Alabama legislature create a second majority-Black district, a decision that could in theory be reversed for subsequent elections.

Robert’s dissent makes the brazenness of the majority ruling pretty plain notwithstanding Kavanaugh’s rationalization about the lower court’s tardiness (caused, of course, by the Alabama legislature itself). It most obviously cost Black voters in Alabama (and, for that matter, Democrats) a majority-Black House seat in 2022 — and probably for the rest of the decade — and short-circuited what many experts anticipated would be court orders adding majority-Black House seats in Louisiana, South Carolina and possibly even Georgia.

From a longer-term perspective, Roberts’s concurrence shows he is probably ready to join the majority in this case in further restricting grounds for the application of the Voting Rights Act to redistricting decisions once this or a similar case comes back to the Court for full consideration. And as election law expert Rick Hasen notes, the Supreme Court continues to expand the shadow docket by adopting Kavanaugh’s expansive interpretation of the Purcell doctrine “on steroids” to “shut down important election law changes” by lower federal courts. It’s all pretty bad news for voting rights and for federal-court review of elections at a time when clarity and fairness are badly needed.

 


February 5: California Progressives Again Frustrated By Demise of Single-Payer Legislation

It didn’t get much national attention, but a dog that did not bark in California was significant, as I explained at New York:

The relatively disappointing legislative results the Democratic trifecta in Washington has produced is attributable in no small part to the obstructive power of the Senate filibuster in a chamber split 50-50 between the two parties. But sometimes a lack of partisan power cannot explain progressive policy failures. Few states are more reliably Democratic than California. Democrats hold solid vetoproof supermajorities in both Houses of the California legislature, and the latest decennial redistricting process (conducted by an independent commission) shouldn’t change that any time soon. And vetoes are rarely necessary, since the governor has been a Democrat since Arnold Schwarzenegger left office in 2011. Any thought that a post-2020 backlash against Democratic rule might upset the Golden State party status quo died with the decisive September 2021 defeat of a ballot initiative aimed at removing Governor Gavin Newsom from office.

Yet California lawmakers have chronically failed to fulfill pledges to achieve the most cherished policy goal of the state’s progressive activists: creating a state-financed universal health-care system. It’s happened again this year with the demise of a single-payer bill without so much as a vote in the lower chamber of the legislature, the California Assembly.

Single-payer health care is part of the California Democratic State Platform, and the state party’s Progressive Caucus has threatened to withhold endorsements from legislators who didn’t support it. It was backed by Newsom when he was elected in 2018, and by Assembly Speaker Anthony Rendon this year. Like the measure that passed the California Senate in 2017 but died in the Assembly, the current bill, AB 1400, is all dessert and no green beans: it prospectively bans private health insurance and sets up a public single-payer system but puts off enactment the tax revenues (somewhere between $314 billion and $390 billion annually, according to legislative analysts) to pay for the new benefits.

Yet AB 1400’s principal sponsor, San Jose legislator Ash Kalra, yanked the bill earlier this week, arguing that he was far short of the votes needed to enact it and didn’t want to put his colleagues on the spot with a recorded vote.

Newsom didn’t comment on the situation. Rendon pushed the blame onto Kalra. Progressives organizations — most notably the California Nurses Association, which has made enactment of single-payer health care its major priority — were very unhappy with the outcome, the latest in a number of major disappointments on this subject in California and elsewhere. The CNA blasted Kalra by name in a statement, saying, “Nurses are especially outraged that Kalra chose to just give up on patients across the state.”

So why does this keep happening? Progressives who consider single-payer a no-brainer substantively point to the enormous corporate lobbying apparatus opposing this or similar universal-health-care legislation, as CalMatters notes:

“The influential California Chamber of Commerce, which represents business interests in the state, labeled AB 1400 a ‘job killer’ shortly after it was reintroduced in January, indicating it would be a top priority to defeat. Its lobbying campaign — joined by dozens of insurers, industry groups and the associations representing doctors and hospitals — included social media advertisements and a letter to members denouncing the “crippling tax increases” that would be needed to pay for the system.”

But it’s this last issue — taxes — that probably best explains the reluctance of Democratic legislators to put their money where their mouths are on single-payer. Some argue passing a bill like AB 1400 without including the taxes necessary to implement it is simply irresponsible. Others fear a tax revolt that could revive the moribund California Republican Party. That is particularly true on the brink of a midterm election in which the GOP may have the wind at its back across the nation, possibly extending all the way to the West Coast.

In any event, Democratic legislators who did not publicly express support for the legislation will brace themselves for possible primary challenges, while Newsom, who is up for reelection next year, will need to make clearer what he will and won’t support and how hard he’ll fight for health-care reform when it comes back up, as it most definitely will. While remaining mostly silent about AB 1400, Newsom has given a lot of attention to his own proposals to expand the state’s Medicaid program to include undocumented immigrants and others excluded from the current health-care system.

The whole brouhaha helps explain why single-payer health care is not seriously being discussed in Washington, and why progressives with a clear and fixed vision of the kind of society Democrats ought to support are so often disappointed.


California Progressives Again Frustrated by Demise of Single-Payer Legislation

It didn’t get much national attention, but a dog that did not bark in California was significant, as I explained at New York:

The relatively disappointing legislative results the Democratic trifecta in Washington has produced is attributable in no small part to the obstructive power of the Senate filibuster in a chamber split 50-50 between the two parties. But sometimes a lack of partisan power cannot explain progressive policy failures. Few states are more reliably Democratic than California. Democrats hold solid vetoproof supermajorities in both Houses of the California legislature, and the latest decennial redistricting process (conducted by an independent commission) shouldn’t change that any time soon. And vetoes are rarely necessary, since the governor has been a Democrat since Arnold Schwarzenegger left office in 2011. Any thought that a post-2020 backlash against Democratic rule might upset the Golden State party status quo died with the decisive September 2021 defeat of a ballot initiative aimed at removing Governor Gavin Newsom from office.

Yet California lawmakers have chronically failed to fulfill pledges to achieve the most cherished policy goal of the state’s progressive activists: creating a state-financed universal health-care system. It’s happened again this year with the demise of a single-payer bill without so much as a vote in the lower chamber of the legislature, the California Assembly.

Single-payer health care is part of the California Democratic State Platform, and the state party’s Progressive Caucus has threatened to withhold endorsements from legislators who didn’t support it. It was backed by Newsom when he was elected in 2018, and by Assembly Speaker Anthony Rendon this year. Like the measure that passed the California Senate in 2017 but died in the Assembly, the current bill, AB 1400, is all dessert and no green beans: it prospectively bans private health insurance and sets up a public single-payer system but puts off enactment the tax revenues (somewhere between $314 billion and $390 billion annually, according to legislative analysts) to pay for the new benefits.

Yet AB 1400’s principal sponsor, San Jose legislator Ash Kalra, yanked the bill earlier this week, arguing that he was far short of the votes needed to enact it and didn’t want to put his colleagues on the spot with a recorded vote.

Newsom didn’t comment on the situation. Rendon pushed the blame onto Kalra. Progressives organizations — most notably the California Nurses Association, which has made enactment of single-payer health care its major priority — were very unhappy with the outcome, the latest in a number of major disappointments on this subject in California and elsewhere. The CNA blasted Kalra by name in a statement, saying, “Nurses are especially outraged that Kalra chose to just give up on patients across the state.”

So why does this keep happening? Progressives who consider single-payer a no-brainer substantively point to the enormous corporate lobbying apparatus opposing this or similar universal-health-care legislation, as CalMatters notes:

“The influential California Chamber of Commerce, which represents business interests in the state, labeled AB 1400 a ‘job killer’ shortly after it was reintroduced in January, indicating it would be a top priority to defeat. Its lobbying campaign — joined by dozens of insurers, industry groups and the associations representing doctors and hospitals — included social media advertisements and a letter to members denouncing the “crippling tax increases” that would be needed to pay for the system.”

But it’s this last issue — taxes — that probably best explains the reluctance of Democratic legislators to put their money where their mouths are on single-payer. Some argue passing a bill like AB 1400 without including the taxes necessary to implement it is simply irresponsible. Others fear a tax revolt that could revive the moribund California Republican Party. That is particularly true on the brink of a midterm election in which the GOP may have the wind at its back across the nation, possibly extending all the way to the West Coast.

In any event, Democratic legislators who did not publicly express support for the legislation will brace themselves for possible primary challenges, while Newsom, who is up for reelection next year, will need to make clearer what he will and won’t support and how hard he’ll fight for health-care reform when it comes back up, as it most definitely will. While remaining mostly silent about AB 1400, Newsom has given a lot of attention to his own proposals to expand the state’s Medicaid program to include undocumented immigrants and others excluded from the current health-care system.

The whole brouhaha helps explain why single-payer health care is not seriously being discussed in Washington, and why progressives with a clear and fixed vision of the kind of society Democrats ought to support are so often disappointed.

 


February 2: Why Supreme Court Nominations Have Become “Political”

Anyone who has been around for a while probably understands how and why Supreme Court confirmations have become partisan, like everything else. But I provided a quick history lesson at New York:

Beneath the hilariously insincere conservative criticism of President Biden for “politicizing” the Supreme Court selection process by pledging to name the Court’s first Black woman is a very different reality: Both political parties fear a “rogue” justice who will align herself against the “team” responsible for her nomination. This concern is much stronger among Republicans, who feel a number of GOP-appointed jurists betrayed them in the past. These grievances were a principal reason for conservatives’ appreciation of Donald Trump’s tightly controlled, highly transactional system for choosing Supreme Court members.

The biggest betrayal of all came on June 29, 1992, when a Republican Party that had already come under the control of the anti-abortion movement was shocked at the decision in Planned Parenthood v. Casey. Expected to deliver the long-awaited overturning of Roe v. Wade, the Court instead gave the central holding of Roe a lease on another three decades of life, with all five justices who upheld abortion rights having been appointed by Republican presidents. One of those five, Reagan appointee Anthony Kennedy, frustrated Republicans off and on for another quarter-century and earned the eternal enmity of cultural conservatives with authorship of the majority opinion in Obergefell v. Hodges, creating a federally established right to same-sex marriage. The biggest favor Kennedy did for his party was to retire when it controlled the White House, allowing Trump to nominate former Kennedy clerk Brett Kavanaugh, a safely ideological successor.

It’s telling that of the five Judases who handed down Casey, two (Justices Kennedy and Sandra Day O’Connor) were appointed by Mr. Conservative himself, Ronald Reagan, while another (David Souter) was appointed by Reagan’s successor, George H.W. Bush. A fourth apostate (John Paul Stevens) was appointed by Gerald Ford, and a fifth (Harry Blackmun) was appointed by Richard Nixon.

Blackmun wrote the main opinion in Roe v. Wade, but that’s not even the most striking example of a Republican-appointed justice who went rogue. That would be Chief Justice Earl Warren, who presided over the Court as it handed down multiple famous decisions promoting civil rights and civil liberties. Conservatives despised and denounced Warren’s jurisprudence for decades. Yet this appointee of Republican president Dwight D. Eisenhower had been a highly partisan Republican politician before becoming chief justice. He was Thomas Dewey’s running mate in 1948, and before being elected governor of California in 1942, he was chairman of the state GOP and a member of the anti-Asian nativist group Native Sons of the Golden West. Most famously, as governor during World War II, Warren championed the internment of around 100,000 Japanese Americans, the majority of them U.S. citizens. He was not a very likely prospect to become the most famously progressive chief justice in the Court’s history. That’s how it goes with lifetime appointments to the federal bench: Teamwork cannot be taken for granted. Another of Ike’s appointees to the Court, William Brennan, built a reputation even more liberal than Warren’s.

Thanks to the Republican control of the presidency for 44 of the 77 years since World War II and some vagaries of luck (Democrat Jimmy Carter had no Supreme Court openings to fill, whereas Donald Trump had three), Democrats have had fewer opportunities to be “betrayed” by Court appointees. Truman appointee Sherman Minton, another former politician (he had been a Democratic senator from Indiana) became a leading advocate of judicial restraint. JFK’s sole appointee, Byron “Whizzer” White, was one of the original dissenters in Roe v. Wade (and was still around to dissent in Casey). In 2008, Democratic presidential aspirant Bill Richardson cited White as his favorite justice, and it damaged Richardson’s campaign significantly.

In any event, the partisan anger spurred by all these apostates is pretty good evidence that the idea of a “politicized” process for selecting Supreme Court justices is neither new or newly unpopular. The long-term trend is in favor of more careful vetting to ensure “betrayals” don’t happen, with Republicans insisting on conformity as much as Democrats. No “team” likes a player who runs the wrong way.


Why Supreme Court Nominations Have Become “Political”

Anyone who has been around for a while probably understands how and why Supreme Court confirmations have become partisan, like everything else. But I provided a quick history lesson at New York:

Beneath the hilariously insincere conservative criticism of President Biden for “politicizing” the Supreme Court selection process by pledging to name the Court’s first Black woman is a very different reality: Both political parties fear a “rogue” justice who will align herself against the “team” responsible for her nomination. This concern is much stronger among Republicans, who feel a number of GOP-appointed jurists betrayed them in the past. These grievances were a principal reason for conservatives’ appreciation of Donald Trump’s tightly controlled, highly transactional system for choosing Supreme Court members.

The biggest betrayal of all came on June 29, 1992, when a Republican Party that had already come under the control of the anti-abortion movement was shocked at the decision in Planned Parenthood v. Casey. Expected to deliver the long-awaited overturning of Roe v. Wade, the Court instead gave the central holding of Roe a lease on another three decades of life, with all five justices who upheld abortion rights having been appointed by Republican presidents. One of those five, Reagan appointee Anthony Kennedy, frustrated Republicans off and on for another quarter-century and earned the eternal enmity of cultural conservatives with authorship of the majority opinion in Obergefell v. Hodges, creating a federally established right to same-sex marriage. The biggest favor Kennedy did for his party was to retire when it controlled the White House, allowing Trump to nominate former Kennedy clerk Brett Kavanaugh, a safely ideological successor.

It’s telling that of the five Judases who handed down Casey, two (Justices Kennedy and Sandra Day O’Connor) were appointed by Mr. Conservative himself, Ronald Reagan, while another (David Souter) was appointed by Reagan’s successor, George H.W. Bush. A fourth apostate (John Paul Stevens) was appointed by Gerald Ford, and a fifth (Harry Blackmun) was appointed by Richard Nixon.

Blackmun wrote the main opinion in Roe v. Wade, but that’s not even the most striking example of a Republican-appointed justice who went rogue. That would be Chief Justice Earl Warren, who presided over the Court as it handed down multiple famous decisions promoting civil rights and civil liberties. Conservatives despised and denounced Warren’s jurisprudence for decades. Yet this appointee of Republican president Dwight D. Eisenhower had been a highly partisan Republican politician before becoming chief justice. He was Thomas Dewey’s running mate in 1948, and before being elected governor of California in 1942, he was chairman of the state GOP and a member of the anti-Asian nativist group Native Sons of the Golden West. Most famously, as governor during World War II, Warren championed the internment of around 100,000 Japanese Americans, the majority of them U.S. citizens. He was not a very likely prospect to become the most famously progressive chief justice in the Court’s history. That’s how it goes with lifetime appointments to the federal bench: Teamwork cannot be taken for granted. Another of Ike’s appointees to the Court, William Brennan, built a reputation even more liberal than Warren’s.

Thanks to the Republican control of the presidency for 44 of the 77 years since World War II and some vagaries of luck (Democrat Jimmy Carter had no Supreme Court openings to fill, whereas Donald Trump had three), Democrats have had fewer opportunities to be “betrayed” by Court appointees. Truman appointee Sherman Minton, another former politician (he had been a Democratic senator from Indiana) became a leading advocate of judicial restraint. JFK’s sole appointee, Byron “Whizzer” White, was one of the original dissenters in Roe v. Wade (and was still around to dissent in Casey). In 2008, Democratic presidential aspirant Bill Richardson cited White as his favorite justice, and it damaged Richardson’s campaign significantly.

In any event, the partisan anger spurred by all these apostates is pretty good evidence that the idea of a “politicized” process for selecting Supreme Court justices is neither new nor newly unpopular. The long-term trend is in favor of more careful vetting to ensure “betrayals” don’t happen, with Republicans insisting on conformity as much as Democrats. No “team” likes a player who runs the wrong way.


January 29: Democrats Have Ground to Make Up on Supreme Court Nominations

The pending retirement of Justice Stephen Breyer will give President Biden the rare opportunity for a Supreme Court nomination, and at New York I examined the lopsided record of recent opportunities to shape the Court.

Assuming President Joe Biden’s nominee to replace retiring Supreme Court Justice Stephen Breyer is confirmed, it will be only the fifth time that a Democratic president has added a member to the Court since the administration of Lyndon B. Johnson. That’s right — the roster of Democratic-nominated Supreme Court justices during the last ten presidencies is short: Ruth Bader Ginsburg and Stephen Breyer, by Bill Clinton; and Sonia Sotomayor and Elena Kagan, by Barack Obama. To date, these Democratic-nominated justices have served a total of 67 years on the Court. During the same time frame, there have been 15 Supreme Court justices nominated by Republican presidents, serving a total (to date) of 292 years.

This lopsided record is partially, of course, attributable to Republican success in presidential elections since 1968. And Obama nominee Merrick Garland’s non-confirmation was a matter of partisan malice; Mitch McConnell, who controlled the Senate at the time, denied him even a confirmation hearing. Other whiffs involved bad luck. In his one term as president, Donald Trump had the opportunity to name three justices (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett). In his one term, George H.W. Bush named two justices. One of them, David Souter, served for 19 years. The other, Clarence Thomas, is still on the Court 13 years after Bush’s son left the White House. Yet Democrat Jimmy Carter had not a single Supreme Court appointment. Barring something unforeseen, Joe Biden should at least avoid that fate.

Opportunities to put new members on the Court are becoming rarer. One bipartisan trend in recent decades has been the nomination of younger jurists whose lifetime terms will presumably be longer. During the last ten presidencies, four justices ascended to the Court before reaching the age of 50. All of them (William Rehnquist, Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett) were nominated by Republican presidents. Rehnquist was on the Court for 33 years. The other three are on the Court right now.

So Democrats have some catching up to do, and Biden knows he’d better get it right, not only by redeeming his pledge to place the first Black woman on the Court, but by choosing someone fully vetted and prepared to serve for a long, long time.


Democrats Have Ground To Make Up on Supreme Court Nominations

The pending retirement of Justice Stephen Breyer will give President Biden the rare opportunity for a Supreme Court nomination, and at New York I examined the lopsided record of recent opportunities to shape the Court.

Assuming President Joe Biden’s nominee to replace retiring Supreme Court Justice Stephen Breyer is confirmed, it will be only the fifth time that a Democratic president has added a member to the Court since the administration of Lyndon B. Johnson. That’s right — the roster of Democratic-nominated Supreme Court justices during the last ten presidencies is short: Ruth Bader Ginsburg and Stephen Breyer, by Bill Clinton; and Sonia Sotomayor and Elena Kagan, by Barack Obama. To date, these Democratic-nominated justices have served a total of 67 years on the Court. During the same time frame, there have been 15 Supreme Court justices nominated by Republican presidents, serving a total (to date) of 292 years.

This lopsided record is partially, of course, attributable to Republican success in presidential elections since 1968. And Obama nominee Merrick Garland’s non-confirmation was a matter of partisan malice; Mitch McConnell, who controlled the Senate at the time, denied him even a confirmation hearing. Other whiffs involved bad luck. In his one term as president, Donald Trump had the opportunity to name three justices (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett). In his one term, George H.W. Bush named two justices. One of them, David Souter, served for 19 years. The other, Clarence Thomas, is still on the Court 13 years after Bush’s son left the White House. Yet Democrat Jimmy Carter had not a single Supreme Court appointment. Barring something unforeseen, Joe Biden should at least avoid that fate.

Opportunities to put new members on the Court are becoming rarer. One bipartisan trend in recent decades has been the nomination of younger jurists whose lifetime terms will presumably be longer. During the last ten presidencies, four justices ascended to the Court before reaching the age of 50. All of them (William Rehnquist, Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett) were nominated by Republican presidents. Rehnquist was on the Court for 33 years. The other three are on the Court right now.

So Democrats have some catching up to do, and Biden knows he’d better get it right, not only by redeeming his pledge to place the first Black woman on the Court, but by choosing someone fully vetted and prepared to serve for a long, long time.


January 26: A Democratic Senate After the Midterms May Depend on Republican Mistakes

With all the attention being placed on the battle for the House in 2022, realistic analysis of the battle for the Senate has been lacking, so I tried to provide some at New York:

Political handicappers looking to the 2022 midterms have focused on House races because the very predictable pattern of midterm House losses by the president’s party makes continuation of a Democratic House a real long shot (and probably a prohibitive long shot unless Joe Biden’s job-approval rating shows significant improvement soon). The loss of either chamber, of course, means the governing trifecta that has made enactment of part of Biden’s legislative agenda possible will be gone, probably for a good while (at least until 2026, by my reckoning). But there is some independent value in continued Democratic control of the Senate thanks to that chamber’s role in confirming Biden’s executive branch and judicial nominees along with the ability to control committee and floor action in a way that gives Democrats significant leverage and opportunities for conveying their message.

Because only one-third of the Senate is up for reelection every two years, there is not the sort of predictable relationship between Senate outcomes and the general political climate. In other words, a bad year for either party in presidential, House, or gubernatorial contests doesn’t mean a bad year in Senate races if the landscape is positive. We saw that most recently in 2018, when Republicans lost 41 net House seats and seven net governorships yet picked up two net Senate seats because the landscape (with 26 Democratic Senate seats and only nine Republican Senate seats at stake) was very positive for the GOP.

The Senate landscape is modestly positive in 2022 for Democrats, who have to defend only 14 seats as compared with 20 seats for Republicans. Moreover, as Amy Walter points out, none of the 14 Democratic seats are in a state carried by Donald Trump in 2020. Meanwhile, Republicans are defending two seats in states carried by Biden in 2020, Pennsylvania and Wisconsin.

But at the same time, Democrats are defending three Senate seats (in Arizona, Georgia, and Nevada) in states Biden carried very narrowly (he won by 0.30 percent in Arizona, 0.24 percent in Georgia, and a relatively luxurious 2.39 percent in Nevada). Republicans in the two nominally blue states whose Senate seats they control don’t have much ground to make up, either (Biden won Pennsylvania by 1.17 percent and Wisconsin by 0.63 percent). They also control an open seat in North Carolina, a state Trump won by only 1.3 percent.

To give you an idea of how much “swing” Republicans might rationally expect in a midterm, consider that Republicans won the national House popular vote by 1.1 percent in 2016 and Democrats won it by 8.6 percent in 2018. That’s a lot of movement against the party controlling the White House. Anything remotely like that in 2022 — again, controlling for state aberrations despite the trend toward straight-ticket voting in recent years — and Republicans could pretty easily sweep the six contests mentioned above, all rated as toss-ups by the Cook Political Report, and take control of the Senate by a 53-to-47 margin, assuming neither party breaks serve by winning in a less competitive state.

What may give Democrats better Senate odds is the current nature of Republican intrastate and intraparty dynamics. There are potentially fractious GOP Senate primaries in Arizona, North Carolina, and Pennsylvania that could produce nominees with real weaknesses. Moreover, in these states and others (notably Ohio, a “red” state that recently reelected a progressive Democratic senator), Trump’s insistence on turning GOP primaries into referenda on loyalty to his ludicrous 2020 election claims could interfere with the expected pro-Republican midterm trend.

Potential Trump-generated problems affecting Senate races aren’t limited to his involvement in just those races. Georgia is a classic example. Freshman Democratic Senator Raphael Warnock, who along with Jon Ossoff won by an eyelash in 2021’s unique dual general-election Senate runoff in what has become the ultimate battleground state, ought to be a sitting duck in 2022 with even a minimal midterm swing. But Trump enormously complicated Georgia politics by pushing the man Ossoff beat a year ago, David Perdue, into a primary challenge to the incumbent governor, Brian Kemp, as part of a purge effort aimed at those who didn’t support the 45th president’s efforts to overturn the 2020 election results. The Perdue-Kemp primary is sure to be an extremely expensive and divisive affair. It could weaken the ultimate winner in a general election against Stacey Abrams and might spill over into the Senate race, where Republican front-runner and Trump favorite Herschel Walker hasn’t shaken questions about his background and temperament (or rid himself of primary opposition).

Divisive Republican gubernatorial primaries seem likely in Arizona and Pennsylvania, as well, and could extend to Wisconsin, where incumbent GOP Senator Ron Johnson is struggling with low favorability numbers.

Republicans should be considered the slight favorites to flip the Senate (and much stronger favorites to flip the House) in 2022, assuming Biden’s popularity doesn’t seriously improve by November. But Mitch McConnell should not be making big plans for 2023. His party’s lord and master, Trump, could screw things up yet, and you never know entirely what will happen in a wide array of competitive Senate races.


A Democratic Senate After the Midterms May Depend on Republican Mistakes

With all the attention being placed on the battle for the House in 2022, realistic analysis of the battle for the Senate has been lacking, so I tried to provide some at New York:

Political handicappers looking to the 2022 midterms have focused on House races because the very predictable pattern of midterm House losses by the president’s party makes continuation of a Democratic House a real long shot (and probably a prohibitive long shot unless Joe Biden’s job-approval rating shows significant improvement soon). The loss of either chamber, of course, means the governing trifecta that has made enactment of part of Biden’s legislative agenda possible will be gone, probably for a good while (at least until 2026, by my reckoning). But there is some independent value in continued Democratic control of the Senate thanks to that chamber’s role in confirming Biden’s executive branch and judicial nominees along with the ability to control committee and floor action in a way that gives Democrats significant leverage and opportunities for conveying their message.

Because only one-third of the Senate is up for reelection every two years, there is not the sort of predictable relationship between Senate outcomes and the general political climate. In other words, a bad year for either party in presidential, House, or gubernatorial contests doesn’t mean a bad year in Senate races if the landscape is positive. We saw that most recently in 2018, when Republicans lost 41 net House seats and seven net governorships yet picked up two net Senate seats because the landscape (with 26 Democratic Senate seats and only nine Republican Senate seats at stake) was very positive for the GOP.

The Senate landscape is modestly positive in 2022 for Democrats, who have to defend only 14 seats as compared with 20 seats for Republicans. Moreover, as Amy Walter points out, none of the 14 Democratic seats are in a state carried by Donald Trump in 2020. Meanwhile, Republicans are defending two seats in states carried by Biden in 2020, Pennsylvania and Wisconsin.

But at the same time, Democrats are defending three Senate seats (in Arizona, Georgia, and Nevada) in states Biden carried very narrowly (he won by 0.30 percent in Arizona, 0.24 percent in Georgia, and a relatively luxurious 2.39 percent in Nevada). Republicans in the two nominally blue states whose Senate seats they control don’t have much ground to make up, either (Biden won Pennsylvania by 1.17 percent and Wisconsin by 0.63 percent). They also control an open seat in North Carolina, a state Trump won by only 1.3 percent.

To give you an idea of how much “swing” Republicans might rationally expect in a midterm, consider that Republicans won the national House popular vote by 1.1 percent in 2016 and Democrats won it by 8.6 percent in 2018. That’s a lot of movement against the party controlling the White House. Anything remotely like that in 2022 — again, controlling for state aberrations despite the trend toward straight-ticket voting in recent years — and Republicans could pretty easily sweep the six contests mentioned above, all rated as toss-ups by the Cook Political Report, and take control of the Senate by a 53-to-47 margin, assuming neither party breaks serve by winning in a less competitive state.

What may give Democrats better Senate odds is the current nature of Republican intrastate and intraparty dynamics. There are potentially fractious GOP Senate primaries in Arizona, North Carolina, and Pennsylvania that could produce nominees with real weaknesses. Moreover, in these states and others (notably Ohio, a “red” state that recently reelected a progressive Democratic senator), Trump’s insistence on turning GOP primaries into referenda on loyalty to his ludicrous 2020 election claims could interfere with the expected pro-Republican midterm trend.

Potential Trump-generated problems affecting Senate races aren’t limited to his involvement in just those races. Georgia is a classic example. Freshman Democratic Senator Raphael Warnock, who along with Jon Ossoff won by an eyelash in 2021’s unique dual general-election Senate runoff in what has become the ultimate battleground state, ought to be a sitting duck in 2022 with even a minimal midterm swing. But Trump enormously complicated Georgia politics by pushing the man Ossoff beat a year ago, David Perdue, into a primary challenge to the incumbent governor, Brian Kemp, as part of a purge effort aimed at those who didn’t support the 45th president’s efforts to overturn the 2020 election results. The Perdue-Kemp primary is sure to be an extremely expensive and divisive affair. It could weaken the ultimate winner in a general election against Stacey Abrams and might spill over into the Senate race, where Republican front-runner and Trump favorite Herschel Walker hasn’t shaken questions about his background and temperament (or rid himself of primary opposition).

Divisive Republican gubernatorial primaries seem likely in Arizona and Pennsylvania, as well, and could extend to Wisconsin, where incumbent GOP Senator Ron Johnson is struggling with low favorability numbers.

Republicans should be considered the slight favorites to flip the Senate (and much stronger favorites to flip the House) in 2022, assuming Biden’s popularity doesn’t seriously improve by November. But Mitch McConnell should not be making big plans for 2023. His party’s lord and master, Trump, could screw things up yet, and you never know entirely what will happen in a wide array of competitive Senate races.