GOP should be careful what they wish for with regard to Supreme Court Nominee

(This column was published in the Dayton Daily News on February 26th, 2016...)

 Within hours of the death of Supreme Court Justice Antonin Scalia last Saturday,

Republican leadership and the remaining Republican candidates for President voiced
the opinion that President Barack Obama should not pick the successor to Scalia.

Majority Leader McConnell quickly released a statement that said, “the American
people should have a voice in the selection of their next Supreme Court Justice.
Therefore this vacancy should not be filled until we have a new president.” Senate
Judiciary Chair Chuck Grassley offered, “It’s been standard practice over the last
eighty years to not confirm Supreme Court nominees during presidential election
years.” GOP front­runner Donald Trump advised a “delay-­delay-­delay” approach
while fellow candidate Ted Cruz said “we owe it to Scalia and the Nation to ensure
that the next President names his replacement.” Marco Rubio said, “The next
President must nominate a justice who will continue Justice Scalia’s unwavering
belief in the founding principles.”

Replacing a staunch conservative with a progressive on the Court flips the balance
of power from leaning conservative to leaning liberal. On issues from Citizens
United, to labor rights, to abortion, gun control, voter’s rights, etc., there’s no
shortage of impactful cases headed the Court’s way. Considering the age of the
three oldest Justices, multiple vacancies during the next Presidential term would
surprise no one. Justice Ruth Bader Ginsberg is 82, Anthony Kennedy is 79 and
Stephen Breyer is 77.

Instead of waiting for a nomination from President Obama, the Republicans
couldn't wait to get on record on how they would refuse to allow this sitting
president to select Justice Scalia's replacement. By merely dragging their feet a bit
and ultimately rejecting the nomination, which is well within their rights and
would’ve been a vastly smarter thing to do, this problem would’ve handled much
more deftly. Having chosen a different path to address this, they look like
hypocritical, spoiled brats at the moment.

Senate Republicans should choose their next steps very carefully. Looking forward,
if the Democrats hold the White House and either President Clinton or President
Sanders is putting forth the nomination, do we think they will be inclined to submit
a less progressive name then President Obama did? I don’t.

If President Trump or Cruz is doing the nominating then the GOP fears become
moot. However, there is nothing currently suggesting either would win in a
comfortable fashion come November. That’s a big risk for the GOP should they
refuse Obama his nominee. What if they lose?

If the GOP’s goal is to block Obama, they can do that. If their goal is to effect the
ideological makeup of the Court as little as possible, they should reconsider their
approach. Obama, a major disappointment to progressives, is unlikely to nominate
a radical. His previous two nominees (Sotomayor and Kagan) are not considered
extreme. If they block him and then lose in November, the new President will
submit their own nominee. By their actions, the GOP may facilitate adding a far
more progressive voice to the Court than Mr. Obama would.

In the wake of Antonin Scalia's unexpected passing, now what?

Antonin Scalia, Supreme Court Justice
(March 11, 1936 – February 13, 2016)

With the unexpected and sudden passing of Justice Scalia, many questions abound on what happens to his seat during this time of fragmented government and a highly contentious presidential campaign. Arguably, the strongest conservative voice on the court, President Obama will surely nominate someone well to Scalia's left ideologically. Leaders of the Republican party have forcefully expressed their intent to handle things in such a way that the next President will nominate a successor to the fallen Justice. The President and his fellow Democrats feel strongly that the Senate should hold confirmation hearings and consider whoever Obama puts forth.

The politics are intense in this matter, and not without complexity.

With a mostly evenly devided Court, each nomination potentially sways the institution one way or another. Reflecting the Country, a divided court is probably best as opposed to a heavily lopsided one. Swing vote Justices, like Anthony Kennedy of perhaps Chief Justice John Roberts, carry a tremendous amount of power in determining the Court's path. Nominations really matter in times like this, and with 2-3 other Justices getting up in age, there may be more replacements needed over the next few years. Just one of the reasons this Presidential cycle is so important for both parties. The next POTUS may appoint several justices, potentially altering the "split" nature of the Court, the effect of which, would touch many aspects of American life for decades to come.

Everyone can point to their pet campaign issue of the debt, foreign affairs, the economy, entitlements, etc., but one issue that potentially / eventually effects everyone is how the Supreme Court rules on its cases. Citizens United, a challenge to Roe V Wade, the pending Unions case, perhaps a new challenge to the Affordable Care act, etc. Each effects thousands of Americans in unique ways.

What do conservatives want?

Conservatives want two things. First, they want to delay any actions taken that would result in a new Justice being confirmed. They understand that Obama will replace Scalia with a progressive mind, probably moderate, and that the effects of that eventuality would be devestating to the Conservative cause. Secondly, they want to win back the White House next November. Give the current state of disarray in the Republican field, they have to feel their best chance lies in delaying Scalia's replacement at almost any price. President Obama is clearly acting within the Constitutional scope of his powers to nominate a candidate for the Court. Likewise, via the somewhat elusively defind "advise and consent" clause of  Article two, Section two of the Constitution, the Senate can delay the process indefinately. (Not without a cost, of course...)

What do progressives want?

Progressives also want two things. First, they want to move forward deliberately with the nomination process and see Senate Confirmation hearings happen within the next few months, resulting in a confirmed nominee to fill Scalia's seat. Secondly, they too want to win the Presidential Election come November and be positioned to fill another 2-3 seats on the Court. The Democrats fear an uncooperative Senate and then worst of all, losing the election in the Fall. That would be a disaster for both short and long term considerations. President Obama would like nothing more than to see an unexpected Supreme Court appointmentbe the cherry on his last term.

The politics of it all...

So many moving pieces to consider.

If the Senate Conservatives get their way, there won't be any vote, regardless of whom President Obama nominates. It's a kind of shitty way to impede the Court's restroration to full status, but this isn't flag-football, people. The more moderate Republicans still around may warn of the potentially high price their party may pay for such a stunt, but for the most part, no one else in that party is paying attention anymore.

If the nomination process is blocked by the Senate leadership, look for the White House and both Democratic candidates Clinton and Sanders to use this a club to beat the GOP field with regularly. They will tell the country that the Senate is merely holding things up so as to avoid Obama filling another SCOTUS seat. The Conservative base couldn't care less, but what will moderate conservatives and independents think of such a plan? Does it become a campaign issue with traction for indy voters? Dangerous ground here to tread for the GOP.


Finally...

You've heard the phrase,  "...better the devil you know than the one you don't." While refusing to grant advise and consent to the sitting President and his nominee, what happens if they succeed in blocking Obama short term. Let's assume Hillary Clinton wins the Presidency. Would she put forth candidates more or less progressive than Obama would? I think that after delaying the entire process and beating the mantra "the next POTUS should pick the next Supreme Court Justice" to death, they'd be in a weak position to then obstruct a Clinton nominee.

Speaking of Clinton, while thought to be more of a hawk on military matters than President Obama, Vermont Senator Bernie Sanders - Clinton's only competition in the race for the Democratic nomination this cycle - has forced HRC to move to her left. If Clinton wins in November, does she submit a moderate progressive to faciliate bi-partisanship or does she put forth a staunch progressive, to take advantage of her political capital from winning the election? What if Sanders wins? Wouldn't he certainly push for progressives on the bench? Of course he would.

Given that, isn't there an argument to be made that the Senate Republicans shouldn't break any speed records, but given the potential for a worse otucome that what Obama might give them, agree to work with President Obama and give him one more appointment.

It may be the Republican's best chance at a more moderate voice replacing the voice of Justice Scalia...

Additional: 

Here are two very enjoyable reads on this issue from the SCOTUSBLOG, a terrific web source for all things Supreme Court.

The first is an article by Tom Goldstein, Publisher of the SCOTUSBLOG, on who Goldstein thinks is the favorite to be nominated by President Obama.

The second is one by the legendary Lyle Denniston, who has covered the Supreme Court since 1958. Denniston gives us an inside look at the current machinations within the Supreme Court and how Scalia's passing will likely effect the Court's short term future.


Sources:

http://www.scotusblog.com/2016/02/ninth-circuit-judge-paul-watford-is-the-most-likely-nominee-to-replace-antonin-scalia/#more-238286

http://www.scotusblog.com/2016/02/judiciary-panel-chair-wait-on-court-until-after-election/

I got to ask the Democratic candidates a question (No, they didn't answer it...)

(This column was published in the Dayton Daily News on February 12th, 2016...)

A few weeks ago I was invited to participate in a private group discussion of undecided voters sponsored by the PBS Newshour on Facebook. A few dozen of us were encouraged to discuss campaign related issues and submit follow-up questions for the Democratic debate in Milwaukee, WI last night.

Early on I submitted a follow-up question for Bernie Sanders that reads as follows:


(From the transcript)

(BREAK)

WOODRUFF: Welcome back to the Democratic presidential debate. Before we return to our questions, we have a follow-up question from our Facebook group. And it is to Senator Sanders.

Senator, it comes from Bill Corfield. He is a 55-year-old musician from Troy, Ohio. And he asks: "Are there any areas of government you would like to reduce?"

SANDERS: Hey, I'm in the United States Senate, and anyone who doesn't think that there is an enormous amount of waste and inefficiency and bureaucracy throughout government would be very, very mistaken.

I believe in government, but I believe in efficient government, not wasteful government.

IFILL: How about you, Senator Clinton -- Secretary Clinton?

CLINTON: Absolutely. And, you know, there are a number of programs that I think are duplicative and redundant and not producing the results that people deserve. There are a lot of training programs and education programs that I think can be streamlined and put into a much better format so that if we do continue them they can be more useful, in public schools, community colleges, and colleges and universities.

I would like to take a hard look at every part of the federal government and really do the kind of analysis that would rebuild some confidence in people that we're taking a hard look about what we have, you know, and what we don't need anymore. And that's what I intend to do.

SANDERS: If I could just answer that, we have also got to take a look at the waste and inefficiencies in the Department of Defense, which is the one major agency of government that has not been able to be audited. And I have the feeling you're going to find a lot of cost overruns there and a lot of waste and duplicative activities.

(APPLAUSE)

 My thoughts:

Overall, I'm disappointed. The answers were boilerplate and not very informative. Certainly not inspiring. Sanders responded first and frankly didn't answer the question. Clinton in turn went straight to "...streamlining wasteful programs involving training and education areas", which sounds good on the surface, but had no real specifics. She then wandered into word-salad land when she said, "...programs can be streamlined and put into a much better format so that if we do continue them they can be more useful, in public schools, community colleges and colleges and universities." What on earth does that mean? 

Sanders, realizing that Clinton had rambled longer than he had, then said something rather amazing. "If I could just answer that..." Wait a second. "If I could just answer that?"  Full stop, Bernie. They asked you first. Remember? Whew...

Sanders then brought up waste and inefficiencies in the Defense Department, which is what he should've said in the first place. He didn't stop there as he (not to be outdone by Hillary) proved he too could say the word "duplicative" in regard to his desire to seeing an audit performed on the Department of Defense.

Duplicative is an odd word. It's not the kind of word regular people use very often, but here are the two leading Democratic candidates for President, and they both say it within 15 seconds of each other.

Somewhere, Marco Rubio was laughing...

This was, in my opinion, a softball question, asked in front of a friendly audience and mostly sympathetic viewers. No harm done. If this question gets the same sort of silly non-answers during one of the Presidential Debates, that will be a different story. They will pay a price for not having something more polished to offer up.

New Hampshire Primary Winners and Losers...

There wasn't much drama as to who would win the Republican or Democratic primaries last night. Donald Trump and Bernie Sanders had both been polling comfortably in first place for a long time and nothing would change that come yesterday. 

With a record setting turn-out, the people of the Granite State helped professional pollsters feel good about themselves once more after a rocky showing in the Iowa Caucuses last week. The final results conformed to the conventional wisdom that Trump and Sanders would win by a wide margin, that Hillary Clinton only had a small likelihood to come within ten percent of Sanders (she finished 22% behind Bernie). Pollsters also predicted a respectable showing from Ohio Governor John Kasich who finished a solid second, four percentage points in front of Iowa GOP winner Ted Cruz and five points ahead of Jeb Bush and Marco Rubio. 


The winners and losers of the 2016 New Hampshire Primaries...

WINNERS: 

Donald Trump -  After a bit of a clumsy 2nd place finish in Iowa, the Trump campaign responded with a renewed focus on the importance of a ground game in New Hampshire. While the outcome was never really in doubt, the time between Iowa and the Granite State allowed the campaign to recalibrate its approach slightly, and should serve it well going forward. With a 16 point lead in the South Carolina Primary Real Clear Politics poll, Trump is sitting pretty as the primary season moves South. With the affirmation that the New Hampshire victory provides him, look for even more swagger and bombast going forward. 

John Kasich - Ohio Governor John Kasich, at least for a night, broke out of the cluster of himself, Jeb Bush, Chris Christie, Ted Cruz and Marco Rubio. New Hampshire was everything to the Kasich campaign, who mostly took a pass on Iowa in favor of touring the state and spreading his message via over one hundred town halls. His efforts were rewarded, as was his unique message and positioning with regard to the other Republicans in the race. Heavy on experience, policy and (for lack of a better word) his belief in  "American togetherness." Kasich is well funded, he has a very good organisation to help him as the primaries head south. Of concern is how well does he play in South Carolina (where he doesn't currently place in the top five of the RCP poll) and beyond. 

Bernie Sanders - Sanders seems to me to be a genuine, sincere and passionate man. He crushed HRC last night with 60% of the votes cast on the Democratic side of the primary. How badly did he defeat her by? CBS News reported that Sanders had captured a stunning 82% of the female vote. That is terrible news for Hillary Clinton. A Sanders win surprised no one and what the future holds for him only time will tell. It's great to win the opening game of the primary season, especially when its in your back yard, no doubt. But we'll quickly see the sheer magnitude of the Clinton campaign with all of its finances and infrastructure as we head to South Carolina and Nevada. Will Sanders be able to get his populist message to resonate enough to make a difference going forward?

Vermin Supreme - When you show up at other people's campaign events with a boot on your head, you're going to get noticed. This novelty candidate wound up with 243 votes, which is more votes than Mike Huckabee, Rick Santorum, Jim Gilmore (who is still officially an active candidate), George Pataki, Lindsay Graham and Bobby Jindal. Despite these hijinks, Supreme got far fewer votes this year than he did in the 2012 NH Primary when he got 833 votes. 


LOSERS: 

Hillary Clinton -  While no one really expected her to win in New Hampshire, this combined with a weak victory last week in Iowa, hardly puts forth a picture of a large, efficient campaign machine that will crush everything in its path. While I fully expect to see that behemoth spring to life over the next few weeks, right now the Clinton campaign doesn't seem to be firing on all cylinders. Her message doesn't have the passion of the Sanders campaign and she never been that good on the campaign trail. She's not a Barack Obama and no where close to her husband, former President Bill Clinton when it comes to hard core campaign skills. The Sanders campaign may have reached its zenith last night, but if the Clinton campaign doesn't step it up a notch and find a way to connect with their voters (the discrepancy in the female vote was shocking) quickly, Bernie Sanders will surely benefit. The sooner HRC dispatches Sanders and can focus on the general campaign, the better for her.

Chris Christie - New Jersey Governor Chris Christie made no bones about how important a solid showing in New Hampshire was. And as the polls leading up to yesterday's Republican primary consistently suggested, the primary voters left little doubt as to their feelings. A sixth place finish in the single digits does not bode well for the campaign's future. One wonders if his time would've been better spent taking a different approach in the last debate. While the attacks on Marco Rubio were entertaining, they weren't especially substantive. Christie has headed back to New jersey to "re-assess" his campaign. 

Marco Rubio - After an uplifting 3rd place showing that was basically a tie for 2nd in last week's Iowa Republican caucuses, the thinking was that Rubio was in a good position to carve out a space just behind the front-runner in New Hampshire. To finish in fifth place last night is not what the Florida Senator had in mind. Rubio quickly took the blame for his poor showing, claiming that his poor performance in last week's debate, "I did not do well on Saturday night. That will never happen again." Rubio sits in third place in South Carolina polls and has to be hoping for a better outcome there.

Carly Fiorina/Ben Carson - If we combine their vote total percents, they finish behind Governor Christie, who has the sense to re-assess whether or not his campaign is viable going forward. The token candidates have done their job, attracted some people who might not otherwise have identified with the GOP, but now its time to swear their allegiance to someone else, and step aside. From what I've seen and heard, Fiorina isn't going anywhere for a while. Ben Carson's future plans are less certain. 

Iowa Caucus Recap...Winners and Losers....

The winners and losers of the 2016 Iowa Caucus...

WINNERS: 

Ted Cruz - Cruz jumped out to an early lead and never looked back Tuesday evening. His superior ground game, attention to detail and resilience in the face of a "Trump attack," proved formidable. The impact of this victory remains to be seen going forward, but we know where it's not. (i.e. delegates...) Mr. Cruz walks away with eight delegates toward the GOP nomination, while Messrs. Trump & Rubio each walk away with seven. The real benefit is momentum as New Hampshire comes next on the primary schedule. Cruz won't win New Hampshire as its considered "home field" for Trump, but a top three showing will position him as a serious and stable candidate built for a long, long run as the primary path then heads south to South Carolina, Nevada and the SEC states. Underestimate him at your own peril.

Donald Trump - While he didn't win, this political novice came in second place and likely learned some lessons along the way that will serve him well. Reports that campaign events were understaffed and a disorganised ground game have been surfaced in various media outlets. Trump's chances of winning in Iowa was never great and his ham-handed attempt to connect with evangelicals fell short. Trump also gave the best speech of any I heard last night. Humble, down to earth, less bombast was just the right tone to leave Iowa and head "home" to the Northeast and the New Hampshire primary, where the billionaire will almost certainly celebrate his first primary victory.

Marco Rubio - Rubio sort of snuck up on everyone and finished just behind Trump. While he deserves credit for his performance, his victory speech was a little over-amped for my liking. Someone should have reminded him he came in a strong third in the Iowa Caucus, and that he didn't just win the Presidency. New Hampshire won't be as kind to Rubio and what happens after that is hard to see at this time.

Bernie Sanders - Just a few months ago, Sanders was 30+ points down to the Hillary Clinton "mega-machine" in Iowa. To virtually tie HRC in Iowa is a fantastic start to the Sanders primary performance. He now heads to New Hampshire, where he will almost surely win and win by a large margin. Sanders will have big-time momentum heading into Nevada and South Carolina. Conventional wisdom (for what it's worth) says Sanders then runs into a brick wall as Clinton finds more friendly states coming up on the primary schedule. Not sure how long the "Burn" will last, but it will certainly be interesting to watch.

LOSERS: 

Hillary Clinton - The presumptive Democratic nominee, for all her name recognition, her cash, her endorsements and her massive organization, couldn't shake off the upstart Bernie Sanders campaign. Yes, she is the technical winner but walks away with one... ONE... more delegate than Sanders does. Long term, she still profiles as the heavy favorite to be the Democratic Nominee, but questions abound in Clinton world. She'll lose in New Hampshire and despite how bright the road after that looks going forward, what effect will the predictable Sanders adoration have in the coming days? Stay tuned.

Ben Carson - It wasn't that long ago when neurosurgeon Ben Carson was the front runner in Iowa. With that positon however comes scrutiny and the good doctor simply hasn't held up well with the attention. The more we've got to know Carson, the less and less he appears to be a remotely serious candidate. Massive staff defections, replacements and bewilderingly snoozy debate performances, here's hoping Ben Carson, while heading to Florida to "change his clothes" reconsiders this hopeless pathetic effort and suspends his campaign and doesn't set foot in New Hampshire. It's time to write another book, Mr. Carson.