Monday Open Thread [2.15.16]

Ezra Klein says replacing Associate Justice Antonin Scalia will be a profound test of the American political system. And I must say, if the GOP blocks the President’s nominee, then no Republican President will ever be allowed to nominate and confirm a Supreme Court Justice so long as there exists 40 Democrats in the Senate.

Justice Antonin Scalia’s death is a test for the American political system — a test it’s unlikely to pass.

The test is simple. Can divided government actually govern, given today’s more polarized parties? In the past, it could. In 1988, a presidential election year, a Democratic Senate unanimously approved President Ronald Reagan’s nomination of Anthony Kennedy to the Supreme Court. The Senate wasn’t passive; it had previously rejected Reagan’s initial nominee, Robert Bork, and his second choice Douglas Ginsburg dropped out of the running. However, it ultimately did its job — even amidst an election and divided party control of the government. […]

This is why political systems like ours rarely survive. Indeed, as the late sociologist Juan Linz wrote, “aside from the United States, only Chile has managed a century and a half of relatively undisturbed constitutional continuity under presidential government — but Chilean democracy broke down in the 1970s.”

The reason for the American political system’s strength, Linz argued, was that our parties were unusual in that they lacked clear ideological distinction — both the Democratic and Republican parties contained both conservatives and liberals. For a system that required compromise to function, that made compromise unusually easy to find.

But in recent decades our political parties have become sharply distinct, with liberals clustered in the Democratic Party and conservatives clustered in the Republican Party. The result is a level of party polarization American politics simply hasn’t seen before.

Jonathan Chait on the heresies of Donald Trump:

Trump has criticized the Iraq War previously. But in this debate he took his attacks to a new level, both in tone and in substance. Not only did he call the Iraq War a failure, but when Jeb Bush insisted his brother kept the country safe, Trump pointed out that the 9/11 attack happened on Bush’s watch, and that Bush lied about the existence of weapons of mass destruction, and then returned to the point again. This is one of the deepest heresies in Republican politics. Republicans invoke Bush’s response to the 9/11 attacks, but they must discuss his record on terrorism as if he took office only after the attacks. […]

That Trump brought up this fact is incredible. That he did so in South Carolina is even more so. South Carolina is a military state, with a hierarchical political culture that makes its conservative voters loyal to their past leaders. […] As Trump has defied his skeptics, evaluations of his political acumen have grudgingly embraced the conclusion that there is a method to his madness. But on Saturday night, he took the madness to a completely new level. By the normal standards of politics, Trump swallowed enough poison to kill himself ten times over. If he survives, it will be the strongest evidence that he has forged a connection with Republican voters that resides beyond any plane visible to the rest of us.

But Matt Yglesias says Trump may still yet survive, but if he doesn’t, he would have been felled for pretty conventional reasons:

I won’t even hazard a guess as to whether this double-sided exchange helped or hurt Trump. Watching it on television, you’d think Republicans there hated everything he had to say. But the reality is that the in-studio audience was hand-picked by the state party and seemingly stuffed with Bush supporters.

But if it did go badly for Trump, what’s fascinating is that it went badly in exactly the kind of way you would have expected Trump’s campaign to go south months ago.

He went way outside the boundaries of the kinds of things Republican Party politicians normally say, and in response Republican Party politicians (and their backers in the state party) piled on to diss him. A political party, after all, is a coalition of like-minded people. When you step outside their zone of comfort and say things they wouldn’t say, they team up to crush you.

It was primary politics as it was supposed to be. And it made for a striking contrast with previous debates that had consisted largely of the establishment-friendly candidates bashing each other on the theory that whoever came out of the “establishment lane” would then face down Trump one on one at some later date. Chris Christie’s murder-suicide attack on Rubio’s repetition of talking points was the highest-profile example of this establishment fratricide, but in truth it’s dominated the entire campaign, leaving Republicans with not much more than wishful thinking as their anti-Trump plan.

David Atkins thinks Trump will emerge unscathed.

It’s hard to overstate how consequential it would be for the GOP establishment if Trump were to make this case and survive. On these issues Trump’s critique is 100% accurate, but it also isn’t far from that made by Bill Maher, Michael Moore and progressive activists. But then again, it’s not at all clear that rank and file GOP voters have much emotionally vested interest in defending Bush/Cheney regime on these issues. Establishment Republicans are extremely upset, to be sure, and Trump’s opponents are trying hard to make hay of his statements. The hand-picked debate audience of GOP donors certainly seemed to believe that Trump had finally gone too far.

But the more we’ve seen of the GOP primary, the more apparent it becomes that at least half of Republican voters have lost all faith with establishment Republican orthodoxy, choosing instead the most aggressively authoritarian, anti-elitist, racist and xenophobic voice in the field.

And all the available evidence so far suggests that Trump will survive even this outrage of truth-telling with nary a scratch.

SCOTUSblog: “In the wake of the death of Justice Antonin Scalia, questions have arisen about whether there is a standard practice of not nominating and confirming Supreme Court Justices during a presidential election year. The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years.”

“In two instances in the twentieth century, presidents were not able to nominate and confirm a successor during an election year. But neither reflects a practice of leaving a seat open on the Supreme Court until after the election.”

We’ve talked about what happens if the Court is divided on a case 4-4. What happens is the lower court ruling that brought the case before the court stands, unless of course the case involved multiple differing lower courts of the same level (i.e. several circuits reached different conclusions, as in the Obamacare cases). So here are six cases where it is likely Scalia’s death will result in a 4-4 decision:

Friedrichs v. California Teachers Association: Perhaps the biggest beneficiaries of Scalia’s death are public sector unions. This case, which produced one of the more contentious oral arguments of the term, was headed towards a 5-4 decision in favor of Rebecca Friedrichs and the other plaintiffs who were challenging the California’s teachers’ union’s right to charge public school employees fees to cover the costs of the collective bargaining it did on their behalf, even though they aren’t members of the union. [So] Labor wins.

US v Texas: Texas and nearly two dozen other states filed suit to block the implementation of President Barack Obama’s orders to the Department of Homeland Security to defer the deportation of about 5.5 million immigrants, especially children brought to the US illegally by their parents. In November, the ultra-conservative Fifth Circuit Court of Appeals, upholding a lower court decision, ruled that Obama had exceeded his authority to make such sweeping changes to the immigration system without an act of Congress. Obama’s move was in trouble even with Scalia on the court, but now it seems likely that a tie vote will result in the Fifth Circuit’s ruling holding fast. Immigrants lose.

Evenwel v Abbott and Harris v Arizona Independent Redistricting: These cases both involve attacks on the drawing of legislative districts and involve the sorts of political issues that the court has historically avoided, preferring to leave politics and redistricting fights to the politicians. Rulings in favor of the plaintiffs–mostly tea party activists–would likely result in political districts more tilted to favor rural, white Republican voters. [P]laintiffs in both cases lost in the [lower] courts, whose decisions are likely to now stand. Tea partiers lose.

Women’s Whole Health v Hellerstedt: The court is poised to hear several major challenges involving women’s reproductive health rights. In Women’s Whole Health, the court will decide whether Texas’s restrictive abortion law, which has already resulted in the closure of many clinics and, if fully enforced, would close even more clinics and force women in Texas to travel long distances or leave the state in search of a legal abortion, is constitutional. The conservative Fifth Circuit upheld most of the law, but the Supreme Court blocked parts of it from taking effect until the case could be heard.

This analysis assumes Kennedy was a no vote. I don’t think he is. I think it will be a 5-3 decision striking down the Texas law. But if Kennedy is a no vote, then it is 4-4, and the lower court’s ruling stands and women lose.

Zubik v Burwell: [A] host of religious organizations, including the Little Sisters of the Poor, have asked the court to block a requirement by the Obama administration that they sign a form asking for a religious exemption for providing mandatory contraception coverage in their insurance plans for employees that’s required by the Affordable Care Act. Virtually all of the lower courts have ruled against the nuns and the other organizations, declaring that signing a piece of paper isn’t much of a burden on religious liberty. So a tied Supreme Court vote is likely to result in a victory for the Obama administration. Nuns lose.

Saturday night’s Republican Debate was a nightmare for the party. David Atkins:

It’s hard to identify who specifically made it the horrific trainwreck that it was, or what the worst moment was. Was it the audience, so obviously stacked with loud and raucous Rubio and Bush establishment supporters behaving like extras from a medieval stage play pit that it confirmed all of Donald Trump’s attacks on debate audiences and even led Ted Cruz to get in on the anti-audience attacks? Was it Donald Trump, who behaved not only incredibly rudely but may have actually gone far enough against GOP orthodoxy as to self-destruct with GOP voters? Was it Ted Cruz, who lied non-stop throughout the debate? Was it Jeb Bush, who kept trying to assert his masculine authority on the stage in a nasty way, yet found himself continually cut down by Trump in an even uglier show of locker room politics? Maybe it was all of the above.

Was the worst moment when Ted Cruz encouraged the audience to boo the moderator simply for telling the truth about a historical fact? Was it when Donald Trump (rightly!) insisted that George W. Bush was responsible for letting us be attacked on 9/11 and for invading Iraq knowing that there were no weapons of mass destruction—but not because he was genuinely offended about the loss of lives involved, but rather because he found it a convenient way to insult Jeb Bush’s family? Was it when Ted Cruz accused Marco Rubio of being too compassionate on immigration, pushing Rubio to tell Cruz that he couldn’t understand what he said on Univision because he didn’t speak Spanish, only to have Cruz challenge him (in Spanish!) to a debate in Spanish? Was it when Trump accused Jeb Bush of being weak simply for saying that immigrants are here to trying make a better life for their families? Was it when the supposedly “moderate” Kasich accused Jeb of the crime of growing Medicaid too much?

It’s hard to know. I’m still in a bit of catatonic shock after sitting through it. I know that the GOP debates are targeted to hardcore Republican primary voters, but even so it’s hard to believe that there is a single persuadable voter watching tonight who would want any of these candidates to become President. It was just that ugly.

Seriously, this is insane.

The GOP is destroying itself tonight, and they have no one to blame but themselves. #GOPDebate

— Frank Luntz (@FrankLuntz) February 14, 2016

Vox has a list of 14 Supreme Court Justices confirmed during Presidential Election Years, with the most recent being 1988 and Anthony Kennedy. So when a Republican lies to you and says that we have never confirmed Supreme Court nominations in Presidential election years or near the end of a term, punch them directly in the face and call them a liar, for that is what they are.

Laura Clawson at Daily Kos on how Bernie Sanders lost her vote, and Hillary Clinton won it.

Economic inequality is at the top of the list of issues I care about. I basically spend my life trying to work it into discussions of every other issue, because I usually think it belongs there. I had a lot of training on that front: When I once described having fled a shoe store after two salespeople began arguing, in front of me, over which of them had approached me first and should get my business, my father said “that’s what decades of stagnating wages will get you.” So a presidential candidate who wanted to talk seriously about inequality? Great!

Except … somehow Sanders has lost me on even that. I simultaneously want a more serious and nuanced class analysis—something deeper than the talking points, more flexibly targeted to specific questions rather than broad strokes—and more willingness to depart from the talking points, to acknowledge that sometimes you really can’t turn a question to your subject of choice. When the time is right to talk about inequality, try to fit the statistics to the moment. When the time is wrong, at least pretend to notice. Clearly Sanders’ talking points are working for lots of people, and I don’t doubt his commitment on these issues, but the repetition has failed to give me anything new or interesting to hang onto. And beyond inequality, the repetition is a problem with how he talks about—or avoids talking about—other major issues, which he so often dismisses. A president has to be willing to take on issues they don’t necessarily care the most about, able to become an expert on anything, able to pivot and start to care. I need more than “trust me,” and I don’t see Sanders failing to give me that, I see him refusing to do so. That’s not confidence-inspiring. […]

But about the politics of Sanders’ policy proposals. I believe in social movements as outside forces exerting force on political parties. The parties want to win, the movements have to create that self-interest, make the policies the path to victory. And I’ve long been frustrated by people who want the Democratic Party to be their social movement, or who think that strategy equals ideology. The Sanders campaign has become the latest embodiment of those frustrations. How will Sanders win not just the presidency but the ability to get a big agenda through Congress? The people will rise up. Except Bernie Sanders is not organizing the people to rise up. He’s running a fairly conventional presidential campaign. Sanders is a long-time member of Congress who has yet to create the kind of movement he’s now suggesting will simply rise up despite the absence of the kind of organizing effort that would take. This will be difficult, and he’s not fully owning that or explaining how we’ll get through the challenges, especially given below-2008 Democratic turnout in Iowa and New Hampshire. It’s a set of promises resting on a fundamental misdiagnosis of how movements and organizing work, and I don’t know whether Sanders believes his line or is selling a line, let alone which would be more damning.

Tom Goldstein on who President Obama will pick to replace Scalia: “The best candidate politically would probably be Hispanic. Hispanic voters both (a) are more politically independent than black voters and therefore more in play in the election, and (b) historically vote in low numbers. In that sense, the ideal nominee from the administration’s perspective in these circumstances is already on the Supreme Court: Sonia Sotomayor, the Court’s first Latina.”

“On the other hand, I think the President personally will be very tempted to appoint a black Justice to the Court, rather than a second Hispanic. His historical legacy rests materially on advancing black participation and success in American politics. The role Thurgood Marshall previously played in that effort is inescapable. The President likely sees value in providing a counterpoint to the Court’s only black Justice, the very conservative Clarence Thomas.”

“For those reasons, I think the President will pick a black nominee.”

“This man accused George W. Bush of being a liar and suggested he should be impeached. This man embraces Putin as a friend. The market in the Republican primary for people who believe that Putin’s a good guy and W. is a liar is pretty damn small.” — Sen. Lindsey Graham (R-SC), quoted by the Washington Post, about Republican frontrunner Donald Trump.

Um, didn’t W look into Putin’s soul and find a friend? And surely W knows he is a liar. So Trump’s market might just be George W. Bush himself.

Ruth Marcus on the GOP’s dangerously dogmatic Supreme Court obstructionism:

For the Senate to shut down the confirmation process would be bad for the court, bad for the country and, ultimately, bad for Republicans. […] History offers no refuge for Republicans here. Grassley’s argument that it has been “standard practice” that nominees are not confirmed during an election year conveniently ignores the fact that such vacancies are thankfully rare. There is no standard practice.

The presidential candidates have been even more strident. I’ll single out Ted Cruz, because he’s both a former Supreme Court clerk and a current member of the Senate Judiciary Committee.

“We should not allow a lame-duck president to essentially capture the Supreme Court in the waning months of his presidency,” Cruz told ABC’s George Stephanopoulos on Sunday.

Capture? Read the Constitution, senator. The president “shall nominate.” Not “shall” unless some unwritten nominate-by date has passed. So much for strict constructionism and conservatives who bleat about their fealty to the constitutional text.

And in legalese, the word “shall” is very important. “Shall” means “Require” The President is required by law to nominate someone. Hell, if the President took their advice and did not nominate someone, the Republicans would probably impeach him for violating the Constitution.

E. J. Dionne, Jr: “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.”

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.