Tuesday, March 29, 2016

Cracking Up

The wall that Mitch McConnell put up to block any Supreme Court appointment, built before the late Antonin Scalia was even buried, is showing some cracks.

When President Obama first nominated Merrick Garland to the Supreme Court, Senate Republicans were united in their wall of opposition — no meetings, no hearing, no vote.

And while Garland’s path remains a very uphill battle, some Republicans are starting to shift their tone.

Two weeks into the nomination fight, 16 Republican senators now say they will meet with Garland — over 25 percent of the GOP caucus — according to a running count by NBC News.

That includes senators up for re-election in Blue States, such as New Hampshire’s Kelly Ayotte and Illinois’ Mark Kirk, who will be the first Republican to actually meet with Garland when they talk Tuesday.

[…]

According to Garland’s boosters and some GOP strategists, Republicans are abandoning opposition to meetings because it could make them appear obstructionist — or even rude.

“Mitch McConell’s knee-jerk response after Justice Scalia’s death is a public relations debacle for the Republican Party,” said former McCain strategist Steve Schmidt.

To defeat a presidential nomination, Schmidt suggested, it is usually better to “derail it slowly over time” — not announce blanket opposition up front.

Well, that last thing the Republicans want to be seen as is rude.  Oh, my.

This doesn’t mean that Judge Garland’s nomination will go anywhere; they could politely meet with him and then go about their business as if President Blackguy’s term was already over and whatever he did doesn’t count.  But at least they’re going to meet with him, which, in this environment, is better than getting the door slammed in his face.

I would never wish for any kind of natural disaster like a flood or a tornado to hit the state of Kentucky — it is springtime when things like that happen — and Sen. McConnell is in need of a federal disaster declaration from the president:

“Oh, gee, Mitch, I’d love to help, but according to you, I can’t do my job during an election year.  Let’s wait until the next president is in office, okay?” [Click.]

Thursday, March 17, 2016

Well Played, Mr. President

Charlie Pierce on the nomination of Merrick Garland to the Supreme Court and the Republicans reaction to it:

They’re in a tough spot. Merrick Garland is an almost universally respected jurist who no less than Orrin Hatch has praised fulsomely on a number of different occasions. In fact, it can be argued that the president flipped the script on Hatch. Oh, Merrick Garland is somebody for whom you could vote? Cool beans, O.H. I happen to have Merrick Garland right here.

Mr. Obama demanded a fair hearing for Judge Garland and said that refusing to even consider his nomination would provoke “an endless cycle of more tit for tat” that would undermine the democratic process for years to come. “I simply ask Republicans in the Senate to give him a fair hearing, and then an up or down vote,” Mr. Obama said. “If you don’t, then it will not only be an abdication of the Senate’s constitutional duty, it will indicate a process for nominating and confirming judges that is beyond repair.”

So it’s a masterpiece of trolling from a guy who’s become very, very good at that. I understand the frustration of the president’s progressive supporters at the idea of a 60-ish white guy replacing a 70-ish dead white guy on the Supreme Court. (I would’ve preferred Jane Kelly from the Eighth Circuit, who already had heads exploding.) I’m sure there were several dozen more diverse, and clearly no-more-fcks-to-give, choices he could’ve made. But Garland’s work as a supervising DOJ attorney in the Oklahoma City bombing case intrigues me, and it is likely to light up the far distant precincts of wingnuttia as well. At the very least, he’s aware of the wildness loose in the country. He seems moderate and judicious and very unlikely to stray too far out of bounds from what this president and his supporters think a Supreme Court justice should be. His opinions on the appellate rights of criminal defendants could use some work, but he’s not likely to join with the likes of Samuel Alito to take an ax to things like the Miranda decision. He’s not a law’n’order guy. Tom Goldstein of the invaluable SCOTUSBlog put together a solid compendium of Garland’s record the last time his name arose to fill a vacancy on the Court, when Garland was passed over in favor of Justice Elena Kagan.

All of which is, for the moment, anyway, moot. This is a purely tactical move, and it’s an awfully good one. Right now, Republican senators are saying that they won’t even take one-on-one meetings with the guy, let alone give him a committee vote, let alone give him a confirmation vote in the Senate. This was precisely the reaction the president was hoping for, although he didn’t exactly have to be Nostradamus to make this play. But I want to know more about this comic book collection.

“[SCOTUS nominee Merrick Garland] put himself through Harvard Law School by working as a tutor, by stocking shoes in a shoe store, and in what is always a painful moment for any young man, by selling his comic book collection,” Obama said. “It’s tough. [I’ve] been there.”

Hey, at least Garland cashed in. My mother threw all of mine out when I went away to college. I coulda been somebody. I coulda had class. I coulda had a cool robe and a lifetime job.

I am sure that Judge Garland knew from the moment he picked up the phone from the White House that he was being nominated as part of a Jedi mind trick on behalf of the president.  Now that Mitch McConnell has backed himself into the corner and tucked his head under his carapace, getting confirmed by this Senate is problematic at best.

The GOP is already dragging Robert Bork out of this crypt to say “Hey, you Democrats did the same thing to him!”  No, actually Judge Bork got a hearing in front of the Senate Judiciary Committee where he was able to elaborate on his 18th century views of women and minority rights.  The committee voted 9-5 against him, but they let the nomination go to the full Senate where he was rejected.  But he got a vote.  If the Republicans want to bork Judge Garland, they have to let him at least get to a hearing.

Judge Garland doesn’t appear to be the icon of a campaign on the part of the DNC, the DNSCC, or any of the other lobbying groups that are already inundating my in-box with appeals to sign the petitions to get the Senate Republicans to confirm him (oh, and toss some coin in the hat while you’re at it), but if they and the Senate Democrats follow the lead of the president and act as if there’s a snowball’s chance that they can slip in through the cracks that are already appearing in the Republicans’ wall of No.  There are at least five senators who are up for re-election in the fall who are already on shaky ground at home and who could be vulnerable to an ad campaign featuring an ominous chorus of “O Fortuna” and the image of a slamming door.  Let’s see how long this laugh-line about “let the voters decide” lasts when it looks like the voters could vote those senators into their next gig as a lobbyist or talking head on Fox.

Short Takes

Merrick Garland is President Obama’s pick for the Supreme Court.

American ISIS fighter is a “gold mine” for U.S. intelligence.

U.S. hits North Korea with new sanctions for nuclear tests.

Denmark regains its standing as the “happiest nation.”

What if Fox had a debate and nobody came?

R.I.P. Frank Sinatra, Jr., 72.

Tuesday, March 15, 2016

Supreme Sacrifice

President Obama may name his choice for the vacancy on the Supreme Court as early as today.

WASHINGTON — President Obama is close to a decision on a Supreme Court nominee based purely on qualifications and experience, White House officials insisted on Monday, but the president’s allies said that political considerations — including whether a nominee had an easily defensible record or appeal to Republicans — were clearly part of Mr. Obama’s calculus.

Speculation now centers on three potential nominees, all federal circuit court judges: Sri Srinivasan, 49, who was confirmed in 2013 with a 97-to-0 vote; Merrick B. Garland, 63, a moderate who has been a finalist in Mr. Obama’s previous Supreme Court searches; and Paul J. Watford, 48, a judge on the Ninth Circuit Court of Appeals in California.

[…]

Jonathan Turley, a law professor at George Washington University, said Mr. Obama must decide whether to pick a “grand-slam” candidate — one like Judge Srinivasan, who is young, moderate and could have a profound effect on the court — or a “sacrifice fly,” like Judge Watford, an impressive judge whose positions on the death penalty and immigration would draw criticism from conservatives but whose nomination could exact a political price from Republicans who oppose him.

“The Obama White House are the ultimate practitioners of realpolitik — they have to be making a careful calculus, but the real question is not how do they win, it’s what game are they playing?” Mr. Turley said.

I don’t think anyone is in favor of picking someone solely on the basis of daring the Senate not to confirm them — as if Clarence Thomas wasn’t picked to replace Thurgood Marshall based on that consideration — but that’s what’s happening here.  And as I noted before, the one distinction that the nominee will have is that ten years from now they will be the answer to a presidential trivia question.

However… if the Republicans are so insistent that the “American voters have a say,” which they already did in 2012 when President Obama was re-elected, the Democrats could parlay the GOP obstructionism to their advantage.  Let the vulnerable Senate Republican incumbents run against an energized Democratic base, especially if the candidate is Donald Trump, and see how willing they are to sacrifice their career for a party that is basically saying “the N- don’t get to choose.”

Friday, March 11, 2016

Playing The Right Way

The Republicans claim that President Obama is “playing politics” with the Supreme Court vacancy by having the nerve to tell them that he will nominate someone to the court despite the GOP’s firm stand against him because he’s not really the president any more, or, to some of them, never was.  Besides, if you want to play politics, you have to really do it right.

Like this guy:

“It’s a different situation,” Johnson said. “Generally, and this is the way it works out politically, if you’re replacing — if a conservative president’s replacing a conservative justice, there’s a little more accommodation to it.”

That’s how it’s done, folks.

I can’t wait until Russ Feingold whips his ass.

Thursday, March 10, 2016

Just Doing Their Job

Oh, look, the Senate Judiciary Committee is planning to do something.

Sen. Chuck Grassley (R-Iowa) said the Senate Judiciary Committee will have a “full-blown debate” Thursday on whether to hold a hearing on a Supreme Court nomination.

“If you want to hear a full-blown debate on this issue, I think we’ll probably have one before our committee tomorrow while we’re also considering three of four judges and a piece of legislation as well,” he said.

A spokeswoman for the Senate Judiciary Committee said the debate is expected to take place during the committee’s regularly scheduled business meeting in the morning. The judges being considered are to fill vacancies on the United States Court of International Trade and the United States District Court of Hawaii.

Grassley, the Judiciary Committee chair, made the announcement during an oversight hearing of the U.S. Department of Justice at which Attorney General Loretta Lynch testified on Wednesday morning.

Grassley was responding to Sen. Patrick Leahy (D-Vt.), who criticized Republicans for meeting behind closed doors and voting to block any Obama nominee without any input from Democrats.

In other words, they’re going to have a “full-blown debate” about whether or not they’re going to do their job.

I used to work with a guy who made elaborate plans to arrange meetings to decide if we should have a meeting to discuss meeting about getting right on a particular task.  The boss eventually got around to firing him.

Thursday, March 3, 2016

Sacrificial Lamb

Via the New York Times:

WASHINGTON — President Obama is vetting Jane L. Kelly, a federal appellate judge in Iowa, as a potential nominee for the Supreme Court, weighing a selection that could pose an awkward dilemma for her home-state senator Charles E. Grassley, who has pledged to block the president from filling the vacancy.

The F.B.I. has been conducting background interviews on Judge Kelly, 51, according to a person with knowledge of the process. The person spoke on the condition of anonymity because the White House is closely guarding details about Mr. Obama’s search to fill the opening created by the death of Justice Antonin Scalia.

And I’m sure the White House told her not to sell her house in Iowa or even plan to rent in D.C. because no matter how qualified she is or how awkward it might be for Chuck Grassley, she’s not going to even be seen by the Senate Judiciary Committee because the Republicans are a bunch of sniveling assholes.

The only thing that she can look forward to is being the answer to a trivia question in ten years.

Wednesday, March 2, 2016

Tuesday, March 1, 2016

Short Takes

Iranian moderates make strong gains in parliamentary elections.’

North Korea shows detained U.S. student on TV.

It’s Super Tuesday for primaries.

R.I.P. George Kennedy, 91, Oscar-winning character actor.

He Talks! — Clarence Thomas breaks 10 years of silence on the Supreme Court.

Rabbit, rabbit, rabbit.

Sunday, February 28, 2016

Sunday Reading

Reasoning with Scalia — Bruce Hay clerked for Justice Scalia and lived to tell the tale.

In the two weeks since his death, many have spoken about Antonin Scalia’s undeniable impact on American law.  As attention shifts to filling the vacancy he has left on the Supreme Court, I would like instead to talk about his less appreciated impact on contemporary physics. But first, a bit of background.

Antonin Scalia generally detested science. It threatened everything he believed in. He refused to join a recent Supreme Court opinion about DNA testing because it presented the details of textbook molecular biology as fact. He could not join because he did not know such things to be true, he said. (On the other hand, he knew all about the eighteenth century. History books were trustworthy; science books were not.) Scientists should be listened to only if they supported conservative causes, for example dubious studies purporting to demonstrate that same-sex parenting is harmful to children. Scientists were also good if they helped create technologies he liked, such as oil drills and deadly weapons.

His own weapon was the poison-barbed word, and the battleground was what he once labeled the Kulturkampf, the culture war. The enemy took many forms. Women’s rights. Racial justice. Economic equality. Environmental protection. The “homosexual agenda,” as he called it. Intellectuals and universities. The questioning of authority and privilege. Ambiguity. Foreignness. Social change. Climate research. The modern world, in all its beauty and complexity and fragility.

Most of all, the enemy was to be found in judges who believe decency and compassion are central to their jobs, not weaknesses to be extinguished. Who refuse to dehumanize people and treat them as pawns in some Manichean struggle of good versus evil, us versus them. Who decline to make their intelligence and verbal gifts into instruments of cruelty and persecution and infinite scorn.

I worked for him early in his tenure on the Supreme Court. He had visited my law school when I was a student, and I was smitten by his warmth and humor and sheer intellectual vibrancy. When I applied for a clerkship at the Court, my hero Justice Brennan quickly filled all his positions, so Scalia became my first choice. He offered me a job and I thought I’d won the lottery. I knew we differed politically, but he prized reason and I would help him be reasonable. A more naive young fool never drew breath.

I can attest to the many nice things people have said about the Justice. He was erudite and frighteningly smart. He said what he thought, not what was expedient. He was generous to friends and family. He loved his clerks and helped them get dream jobs. And we returned the favor by not thinking about what we were doing, then or afterward. What I took for the pursuit of reason in those chambers was in fact the manufacture of verbal munitions, to be deployed against civilian populations. From the comfort of our leather chairs, we never saw the victims.

Anyway, about his contribution to physics. I am close to one of the victims of his operation, a transgender woman named Mischa Haider, whom I got to know during the course of her work on a Ph.D. in physics at Harvard. She’s an extraordinary polymath — gifted violinist, writer and novelist; fluent speaker of a half-dozen languages; math genius. And physicist. Her intellect would have made our brilliant Justice want to hide his head in a bag, to borrow his charming words from last year’s marriage equality ruling. Those who have any doubt about trans mothers should meet Mischa’s children.

Since coming out as trans a few years ago, this remarkable woman has suffered a debilitating depression. Partly from the transphobia she encounters daily at the allegedly enlightened Harvard; from the constant stares in public; from the indignity of worrying about things the rest of us take for granted, like walking in the street or using a public bathroom without fear of taunts or violence, or taking her children to the park without fear of being humiliated in front of them.  And from the pain of rejection by family and former friends who, despite her prodigious achievements, are somehow ashamed to be associated with her.

Beyond all that, it’s her knowledge of what the “culture war” means for trans women across the country, women who are shunned by their families, who are often unable to get jobs and therefore live in poverty, who face shocking levels of assault and murder (2015 was a record year), who attempt suicide at a rate greater than 40 percent. Who are generally excluded from the protection of antidiscrimination laws. Who, on the contrary, are at this moment the subject of dozens of pending pieces of transphobic legislation around the country, such as bills to stigmatize trans children by forcing them to use separate locker rooms at school or to jail trans women for using public bathrooms that match their identity. The drumbeat of organized hatred, calling to mind yellow stars and separate drinking fountains and worse, makes my friend feel like a nonperson, unwelcome in her own country. All this, for the crime of not matching someone else’s idea of how women are supposed to look.

She’s decided to leave academic physics after finishing the doctorate. She has become too absorbed in the struggle for equality – for being accorded the most basic human dignity – to think of anything else. She could not live with herself, she tells me, if she did not devote her talents to helping the many trans women whose lives are decimated by the bigotry and ignorance of those around them. Bigotry and ignorance inflamed by demagogues like Antonin Scalia, whose toxic rhetoric has done so much to incite and legitimate fear of gender nonconformity and elevate it to the level of constitutional principle. She is resolved to become a trans rights activist.

So that is Antonin Scalia’s contribution to physics. To drive a woman with a luminous mind from the study of quantum theory and statistical mechanics and condensed matter, and into the urgent project of safeguarding vulnerable people from the inhumanity he dedicated his life to spreading. An inhumanity that survives as his true legacy, safeguarded by deluded acolytes and admirers.

Scalia passed away in his sleep at a luxurious hunting lodge. He died as he lived, gun at hand, dreaming of killing helpless prey from a position of safety and comfort. May his successor on the Court have a loftier vision of law, and of life.

Bernie’s Bumpy Road — Ryan Lizza in The New Yorker on what lies ahead for Sen. Sanders.

What Bernie Sanders is trying to accomplish is ludicrous. His age (seventy-four), political label (socialist), disposition (grumpy), and aesthetic (rumpled) make him the most improbable Presidential candidate of 2016 not named Trump. At the start of the race, the gap between Sanders and Hillary Clinton when it came to name recognition, élite Party support, polling, and fund-raising was nearly as wide as it could possibly be between two candidates vying for the nomination. Sanders has been maddeningly vague about how he would pass what would be the most ambitious and expensive Democratic agenda in modern history. When he’s forced to talk about foreign policy he seems hesitant and uncertain. Nearly every answer involves some reference to his opposition to the 2003 Iraq War.

And yet his campaign against Hillary Clinton has defied all expectations. Iowa was essentially a tie, and in New Hampshire he defeated her by twenty-two points. Saturday in Nevada, he kept the race close, losing by just five points in a state where he started behind by fifty-four points in the state’s first poll last year. While raw vote totals have not been reported for Iowa and Nevada, which hold caucuses, it’s certain that if the first three states were combined, Sanders has won many more votes than Clinton has so far in 2016.

Sanders has also already fared better than two recent Democratic insurgencies: Bill Bradley’s 2000 campaign against Al Gore and Howard Dean’s campaign against half a dozen Washington insiders, in 2004. But there’s been only one successful Democratic insurgency in recent decades—Barack Obama’s, in 2008—and Sanders is not on the same trajectory. There were two major components to Obama’s success. First, Obama expanded the Democratic electorate. This started in Iowa, where turnout hit a record in 2008 when Obama attracted young voters, independents, and even Republicans to caucus for him. If the traditional Iowa electorate of a small number of older Democratic partisans had shown up, Clinton would have defeated Obama. After Obama won Iowa, he opened a crucial second front against Clinton when he began to win over non-white voters. Even after building that strong coalition, he barely defeated Clinton; depending on how you count, she ended up winning more over-all votes than Obama.

Sanders has been expanding the electorate, but not by enough, and the over-all turnout numbers in 2016 are not meeting or exceeding the Obama milestones. Sanders is dominant with young people and political independents—according to the latest figures, he won voters between the ages of eighteen and twenty-nine by eighty-two to fourteen in Nevada—but it’s not enough to make up for his deficits among other groups. The Nevada results show Sanders is having trouble breaking into traditional Democratic constituencies, like African-Americans and older voters, especially among women. Clinton won African-Americans by seventy-six per cent to twenty-two per cent in Nevada. Voters over forty-five years old made up sixty-three per cent of the Nevada electorate, and Clinton won that group by more than two to one.

There was one bright spot for Sanders in the Nevada results. He appears to have cut into Clinton’s support among Hispanics. As with other groups, it was younger Hispanics who came out for him. The more well known Sanders is among younger voters of all races and backgrounds, the better Sanders performs. His problem is that, as the total number of primaries held accelerates over the next few weeks, he might not have enough time for voters to get to know him, and, even given his impressive fund-raising, he might not have the resources to truly compete in dozens of states.

Nevada is a quirky state—it has a transient, overwhelmingly urban population—and the outcome there shouldn’t be over-interpreted. Sanders could still pose a challenge to Clinton for many weeks to come. Insurgencies usually fail, but they often tell us something about the shape of politics in the near future. Clinton may defeat Sanders’s millennial army in the primaries, but to succeed she and other Democrats will need its support for years to come.

Florida Flush — Lake Okeechobee’s dirty water hits the beaches.  By Sarah Rathod in Mother Jones.

Just in time for tourist season, both of Florida’s coasts are being flooded by dark, polluted water that’s killing ocean creatures and turning away would-be swimmers, fishermen, and other visitors.

Last month was South Florida’s wettest January since 1932. Because of the heavy rain, the water levels in Lake Okeechobee in central Florida rose to about a foot above what’s normal for this season. On top of that, water managers began to pump dirty water from flooded farms into the lake, adding more pollution to a body of water that already contains fertilizers and other chemicals from the state’s cattle and sugar industries. At the same time, officials began to worry that the rising lake waters would put stress on its aging dike, so they decided to drain the lake toward the east and west coasts. Some 70,000 gallons per second flowed into the St. Lucie River and the Caloosahatchee River all the way through to the Gulf of Mexico and the Atlantic Ocean. And as the toxic runoff spreads, it’s threatening sea grasses and oyster beds and adding to harmful algae growth.

Now the tourism industry and small businesses on the coasts are worried they’re going to see their business slump as a result of the pollution. Local politicians are calling on Gov. Rick Scott to declare a state of emergency, and mayors are traveling to Washington, DC, to demand action from Congress and the Army Corps of Engineers. And Floridians are snapping pictures of the polluted water and dead sea creatures and sharing them on social media.

According to David Guest, managing attorney of the Florida branch of the environmental law group Earthjustice, the pollution is not going to end anytime soon. He blames lax regulations, not the unseasonable rain, for the current crisis. “The lake is basically a toilet,” Guest says. Florida’s powerful sugar industry has stood in the way of the state purchasing land south of the lake that could be used to build a waterway to direct dirty water to the Everglades, cleansing it along the way.

According to John H. Campbell, a spokesman for the US Army Corps of Engineers, state and federal officials are unable to divert the polluted water south to the Everglades at the moment. The marshes between the lake and the Everglades are too flooded, and it could be a matter of weeks or even months before the water levels come down. In the meantime, the polluted water will keep being diverted to the coasts, where Florida’s tourism industry lies. “We really don’t have any other options,” Campbell says. “That’s all we can do.”

Doonesbury — Seemingly Happy.

Thursday, February 25, 2016

Gander Sauce

Upyernoz has a good idea: If “lame duck” President Barack Obama can’t nominate a Supreme Court justice, then none of the 34 “lame duck” senators up for re-election this year should have a vote on confirming a nominee.  That would leave “30 Republicans and 35 Democrats (plus Bernie Sanders, who caucuses with the Democrats) who should get to vote on the nomination.”

Works for me.

A Very Weak Hand

The more the Senate Republicans talk like there’s absolutely no way they will consider confirming a Supreme Court nomination from President Obama, the more they sound truly desperate.  They may be able to control the actual nomination, but it could blow up in their faces if they don’t put an end to the debate now.

Josh Marshall:

If the Democrats are smart about this, this is a far more potent electoral cudgel in Senate elections than most folks realize. Start with the given that this battle is life and death for partisan Democrats and partisan Republicans. But those people seldom determine statewide elections, certainly not in swing states. Lightly affiliated Democrats and Republicans and actual swing voters are highly attuned to charges about political dysfunction, refusal to do your job and so forth.

So let’s start with this. Republican senators won’t meet with the nominee. We get it. But I’m pretty sure Democratic senators will meet with him or her and make quite a show of it. I’m also fairly sure the White House will keep trying to set up meetings with Republican Senators and make a show of the on-going refusals. Senate challengers will press it in their campaigns too. And I have little doubt the White House will be sure to arrange meetings with the couple Republican senators who’ve so far bucked the unified front.

As I noted earlier, the necessity of the “three nos” is tied to a very evident slippery slope Republicans are desperately trying to avoid. If you meet with a nominee and then get asked how it went, what do you say? “It was a good meeting, a very qualified individual. But we definitely won’t hold a confirmation hearing?” That doesn’t make sense. The whole thing doesn’t make a lot of sense. But that’s okay if you put the whole story to bed in February or March. There’s a big difference between just announcing it and getting past it and having a death of a thousand messaging cuts over the course of an election year. As the people managing the opposition on the Republican side have made clear, they need to do everything they can to avoid any discussion which focuses on the qualifications of the nominee – an amazingly cynical statement but accurate in terms of strategy.

As I said, partisans on both sides are immovable on this. And loosely affiliated or swing voters, by definition, aren’t terribly knowledgeable or concerned about the differences over judicial philosophy which undergird this fight. But these voters are extremely focused on gridlock, doing your job or not doing your job, people who refuse to do their job or just do what makes sense for seemingly arbitrary reasons. What is more, there’s no ideological commitment required in this case. The issue is readily understandable. This is your job. Do your job. Especially if you’re asking to be hired again!

[…]

I fully expect you’ll see Democrats standing up DoYourJob.com type websites across the swath of states from the Atlantic to the Mississippi Valley and using various methods to continue pressing those half a dozen senators on whether they’ll meet with the nominee, whether they’ll vote and why if they will do those things they won’t or can’t convince their colleagues to do the same. I strongly suspect that those endangered senators can’t hold up under six months of that onslaught, not without sustaining a measure of reputational damage which may not be vast but is more than enough to lose them their seats.

The only real challenge I see here for the White House is that the person President Obama likely wants is one of those brainiac, hyper-credentialed judicial minds whose made his or her life in the law schools and the federal bench. Those tend not to be the sort of people who are temperamentally cut out for this kind of political drama. To the extent these folks are political – and they definitely are, just in a different way – they may not see it as in their longterm interests to become such a politically charged figure. Still, I’m sure Obama can find someone.

The smarter Democrats must see this. And I suspect the Republicans do too. That’s why they are doing everything they possibly can to shut this process down before it starts. That’s the key. It is entirely within their power not to hold a vote. The public spectacle of nine months of stonewalling, the political fallout and the narrative it creates is not. That’s what’s behind the almost maniacal blood oath drama of the “three nos”. This is not close to over unless the Democrats agree to make it over. And I doubt they will.

The only question remaining is how would the GOP climb off this ledge without it looking like they’re caving in to President Obama and the Democrats.  The short answer is that they can’t without looking even more craven than they already do.

Friday, February 19, 2016

The Constitution Outlives Antonin Scalia

Linda Greenhouse in yesterday’s New York Times:

About 10 years ago, I attended a gathering of Canadian judges and lawyers at Cambridge University. Justice Scalia gave his stump speech there about how his Constitution was not “living” but “dead,” with legitimate constitutional interpretation limited to the words and original understanding of the document’s authors. He may or may not have known that in Canada, constitutional interpretation starts from the premise that “the Constitution is a living tree.” In any event, his speech fell flat; rather than greeting his remarks with the appreciative chuckles and applause he usually received, the audience sat on its hands. I remember his disconcerted expression.

Justice Scalia received relatively few opinion assignments in major cases, either from Chief Justice Roberts or Chief Justice William H. Rehnquist, with whom he served for 19 years. The reason was obvious: He refused to compromise, a trait that put him at risk of losing a majority in close cases. I used to wonder why he didn’t value effectiveness over perfection, why he would not rather compromise than lose. But I came to realize that Justice Scalia wasn’t playing the inside game. No matter that he never persuaded a majority of his fellow conservatives on the court to sign up for his brand of originalism.

What mattered was his ability to invoke originalism as a mobilizing tool outside the court, in speeches and in dissenting opinions. The message was that courts have no business recognizing “new” rights. (Except, evidently, new rights of which Justice Scalia approved, such as an unconstrained right for corporations to spend money in politics.) The audience for his dissents, he told Ms. Senior in the New York magazine interview, was law students. The mission he set for himself was cultivating the next generation.

For a long time, he did a good job of addressing the public outside the court’s marble walls. In 2003, his dissenting opinion in the gay rights case Lawrence v. Texas warned that the court’s declaration of constitutional protection for same-sex relationships would lead to protection for same-sex marriage. State after state heeded the warning and enacted same-sex marriage bans.

Ten years later, when he dissented from the court’s overturning of the Defense of Marriage Act in United States v. Windsor, which found that married same-sex couples were entitled to federal benefits, he warned that the decision made the constitutional right to same-sex marriage inevitable. “No one should be fooled; it is just a matter of listening and waiting for the other shoe,” he wrote.

Within a matter of months, federal district judges around the country invoked Justice Scalia’s dissent in striking down same-sex marriage bans. The much less polemical dissent in Windsor by Chief Justice Roberts, describing the decision as a narrow one based on principles of federalism, went uncited.

Had Justice Scalia overreached? Lost his touch? Or had times changed so that not even the most mild-mannered dissent could have stemmed the tide? Hard to say. Still, people listened, just as they did last June when the court ruled for same-sex marriage in Obergefell v. Hodges and Justice Scalia wrote that before he would ever join such an opinion “I would hide my head in a bag.”

There’s no doubt that Justice Scalia was smart man and knew how to turn a phrase.  That’s fine, but does that warrant being considered “one of the greatest legal minds of the last 100 years”?  I would think that anyone who thinks the Constitution hasn’t changed since 1789 and that we should live by the same moral codes that informed the Georgian era needed a reality check.

It’s also apparent that while Justice Scalia may have been a “strict constructionist,” his complaint that “five unelected justices” could change the rules of marriage but didn’t seem to mind it when the same number of judges put a president in office and ruled that corporations are people, too, then his idea of “strict construction” belongs in the bag with his head.

Tuesday, February 16, 2016

Here’s An Idea

Charlie Pierce has a suggestion for the replacement for Antonin Scalia on the Supreme Court.

I am all-in for total chaos on this whole Supreme Court thing.

If the Republicans are going to invent a new constitutional tradition on the fly, I say the Republic is best served by making them choke on it. Already, Steve M. is pointing out the shitstorm that would break if the president were to nominate Attorney General Loretta Lynch. Mountaineer Mike Tomasky has an interesting suggestion regarding a brilliant young jurist who also would put the GOP deeper in the ha’penny place as regards Hispanic voters. Good. All good. But let me suggest a name as well.

Anita Hill.

I am, as I said, all in for chaos, and this would be the all-timer.

Professor Hill is a widely respected scholar of the law. She would be a fine addition to any court in the land. Also, she would make the Republicans eat their own faces, one at a time. Imagine the hearings. The Republicans would have no choice but to bring up the whole Clarence Thomas matter again. Although perhaps, this time, the other women who allegedly were harassed by Mr. Justice Thomas would not be intimidated out of testifying, and the Democratic senators would not be intimidated out of calling them. (Sorry, Joe Biden. That was a bad day for you.) This would be Your Show Of Shows.

Look. We’re all kidding ourselves anyway.

The Republicans likely aren’t even going to give the president’s nominee a committee hearing, let alone a confirmation vote. Any Republican who voted to do either one would be barbecued in a primary, and they all know it. (Even New Hampshire Senator Kelly Ayotte, the Metternich of Manchester, who’s in the fight of her life next November in a purplish state against popular Democratic governor Maggie Hassan, took a dive on this one.) We might as well have some fun with this disgracefully futile exercise in allegedly constitutional government.

I know he’s being tongue-in-cheek or puckish, or whatever term you want to use for being too-cute-by-half, but the suggestion has some merit.  There has to be a way to absolutely shame the Republicans into doing something when President Obama sends up his nominee, be it Attorney General Loretta Lynch, Judge Sri Srinivasan of the DC Circuit, or his wife.

I would prefer that the president send up a real choice; one that would actually get on the court rather than someone who will be just a token while the Republicans do nothing.  While it may be good politically for the seat to remain vacant so the Democrats can run and possibly win both the presidency and Senate seats by running ads on how the country is suffering because of the vacancy, the country will actually suffer because of the vacancy.

Then again, if the GOP is that set on letting the next president pick the nominee, let’s wait and see who Hillary Clinton or Bernie Sanders will pick.  That should teach them.

Sunday, February 14, 2016

Sunday Reading

The Death of Antonin Scalia — Evan Osnos in The New Yorker looks at what lies ahead now that he’s gone.

Scalia gesture 02-14-16The abrupt death of Supreme Court Justice Antonin Scalia—the fiery, funny, polarizing face of the Court’s modern conservative turn—ended a chapter in legal history and opened a political battle of a kind that America has not seen in decades. The bitter divide of this Presidential election season—over visions for the economy, national security, and immigration—has widened to include the ideological composition of the nation’s highest court.

At seventy-nine, Scalia was the Court’s longest-serving Justice, a father of nine, and an outsized personality who thrilled conservatives and infuriated liberals like nobody else in Washington. Though he maintained close friendships with some of his combatants, including fellow Justice Ruth Bader Ginsburg, and always hired a “token liberal” among his clerks, he openly relished the political implications of the Court’s affairs. Ever since he was nominated by President Ronald Reagan, in 1986, he dedicated himself to combating the notion of a “living” Constitution that evolves in step with the nation. The very announcement of Scalia’s death was accompanied by a political declaration. In the first official notice, Texas Governor Greg Abbott said, “We mourn his passing, and we pray that his successor on the Supreme Court will take his place as a champion for the written Constitution and the rule of law.”

The 2016 election has become a contest not only to determine control of the White House and the Congress but also to shape the future of the Supreme Court. The next President was expected to make multiple appointments to the court. (On Inauguration Day, Ginsburg will be nearly eighty-four, Anthony Kennedy will be over eighty, and Stephen Breyer will be seventy-eight.) With Scalia’s death, the partisan composition of the Court is now already up in the air. In a hastily arranged address on Saturday night, President Obama said he planned to name a nominee, over the protests of Republicans who could seek to prevent the Senate from voting on it. “I plan to fulfill my constitutional responsibility to nominate a successor, in due time. There will be plenty of time for me to do so, and for the Senate to carry out its responsibility for a timely vote,” he said. The issues at stake, he added, “are bigger than any one party. They are about the institution to which Justice Scalia dedicated his life.”

The outcome of the process has the potential to reshape American law on abortion, affirmative action, voting rights, energy, campaign finance, and many other issues. The political effects on the Presidential race cut in multiple directions: Will the suddenly inescapable vision of, say, a Cruz Presidency and a Cruz-chosen nominee bring more Democrats to the polls? And to which Democrat does that benefit accrue? Will the risk of a Sanders Court inspire evangelical voters to consolidate behind a Republican choice?

As news of Scalia’s death spread, hours before a Republican debate, the call for a moratorium on political strategizing around the news, in order to honor his achievements, was brief. Senate Majority Leader Mitch McConnell issued a statement that, in effect, called on President Obama to refrain from naming a replacement and allow the Court to operate with eight Justices. “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,” McConnell said.

Ted Cruz, the Texas senator who was a clerk for former Chief Justice William H. Rehnquist, agreed, marking Scalia’s passing in a tweet: “We owe it to him, and the Nation, for the Senate to ensure that the next President names his replacement.” Senate Minority Leader Harry Reid called on Obama to nominate a replacement immediately, saying, “The Senate has a responsibility to fill vacancies as soon as possible.” Donald Trump, the Republican front-runner, called for the Senate to “delay, delay, delay” if President Obama attempts to name a successor.

Hillary Clinton said that Republicans who want the seat to remain vacant until the next President is in office “dishonor our Constitution” for partisan reasons. Bernie Sanders, who defeated Clinton last week in the New Hampshire primary in part by presenting himself as a different kind of politician, avoided any mention of the political implications: “While I differed with Justice Scalia’s views and jurisprudence, he was a brilliant, colorful and outspoken member of the Supreme Court. My thoughts and prayers are with his family and his colleagues on the court who mourn his passing.”

When Obama does nominate a successor to Scalia, that could set the stage for a Republican filibuster in the Senate. If there is a filibuster of a nominee, it will be the first time that has occurred since 1968, when President Lyndon Johnson, blocked by Senate Republicans and Southern Democrats, reluctantly withdrew the nomination of his confidant Abe Fortas, whom he had appointed to the Supreme Court three years earlier, to succeed Earl Warren as Chief Justice.

That drama began in June of that year when Warren, a Republican known for his liberal decisions, informed Johnson that he intended to retire. Just months before Election Day, Johnson moved swiftly to nominate Fortas as a successor to the Chief Justice. But it emerged that Fortas had attended White House staff meetings, briefed Johnson on Court deliberations, and pressured senators to limit their opposition to the Vietnam War. Moreover, Fortas had been paid outside his salary to speak to students at American University. The Illinois Republican Everett Dirksen and others withdrew their support—sparking the first and, so far, the only Senate filibuster over a Supreme Court nomination. (Scholars and partisan opponents have debated, ever since, whether it was technically a filibuster or another form of parliamentary procedure, though Laura Kalman, a professor of history at the University of California at Santa Barbara, has said that “Abe Fortas and L.B.J. are spinning in their graves at the notion there was no filibuster.”)

While the White House weighs potential nominees, the courts and Presidential contenders face a range of puzzling implications. What will happen if the Supreme Court reaches a tie in any of the cases that are currently before the Justices? (The lower court ruling would stand but would not set a legal precedent.) Is there any liberal nominee who stands a chance of winning confirmation in a Republican-controlled Senate? (Early bets landed on Federal Appeals Court Judge Sri Srinivasan, an Indian-American jurist who has worked in both Democratic and Republican Administrations.) In his nomination to the U.S. Court of Appeals for the D.C. Circuit, Srinivasan won, in 2013, that rare achievement for a Democrat in today’s Washington—unanimous confirmation, with praise from Republicans.

It’s Not Just Flint — David Rosner and Gerald Markowitz report that a lot of cities and towns have bad water.

“I know if I was a parent up there, I would be beside myself if my kids’ health could be at risk,” said President Obama on a recent trip to Michigan.  “Up there” was Flint, a rusting industrial city in the grip of a “water crisis” brought on by a government austerity scheme.  To save a couple of million dollars, that city switched its source of water from Lake Huron to the Flint River, a long-time industrial dumping ground for the toxic industries that had once made their home along its banks.  Now, the city is enveloped in a public health emergency, with elevated levels of lead in its water supply and in the blood of its children.

The price tag for replacing the lead pipes that contaminated its drinking water, thanks to the corrosive toxins found in the Flint River, is now estimated at up to $1.5 billion. No one knows where that money will come from or when it will arrive.  In the meantime, the cost to the children of Flint has been and will be incalculable.   As little as a few specks of lead in the water children drink or in flakes of paint that come off the walls of old houses and are ingested can change the course of a life. The amount of lead dust that covers a thumbnail is enough to send a child into a coma or into convulsions leading to death. It takes less than a tenth of that amount to cause IQ loss, hearing loss, or behavioral problems like attention deficit hyperactivity disorder and dyslexia. The Centers for Disease Control (CDC), the government agency responsible for tracking and protecting the nation’s health, says simply, “No safe blood lead level in children has been identified.”

President Obama would have good reason to worry if his kids lived in Flint.  But the city’s children are hardly the only ones threatened by this public health crisis.  There’s a lead crisis for children in Baltimore, Maryland,Herculaneum, Missouri, Sebring, Ohio, and even the nation’s capital, Washington, D.C., and that’s just to begin a list.  State reports suggest, for instance, that “18 cities in Pennsylvania and 11 in New Jersey may have an even higher share of children with dangerously elevated levels of lead than does Flint.” Today, scientists agree that there is no safe level of lead for children and at least half of American children have some of this neurotoxin in their blood.  The CDC is especially concerned about the more than 500,000 American children who have substantial amounts of lead in their bodies. Over the past century, an untold number have had their IQs reduced, their school performances limited, their behaviors altered, and their neurological development undermined.  From coast to coast, from the Sun Belt to the Rust Belt, children have been and continue to be imperiled by a century of industrial production, commercial gluttony, and abandonment by the local, state, and federal governments that should have protected them.  Unlike in Flint, the “crisis” seldom comes to public attention.

Hollywood Comes to Cuba — Victoria Burnett reports for the New York Times on lights, camera, and action in newly-reopened Havana.

Cuba PosterDuring a shoot for the Showtime comedy series “House of Lies” last month, Don Cheadle sat outside a cafe in Old Havana, puffing on a fat cigar and clinking glasses with three compadres.

It was a novel scene — an American actor filming an American TV show on a Cuban street — and one that, until last month, would have been illegal under the United States’s economic embargo.

But regulations published by the Treasury Department on Jan. 26 now allow Americans to shoot scripted movies and shows in Cuba for the first time in half a century. The rules opened the door to American projects — which could include scenes for the next “Fast & Furious” movie and an Ethan Hawke film — and to collaboration between Hollywood and the island’s underfunded film sector.

“The world just got bigger because Cuba has become accessible,” said Matthew Carnahan, creator of “House of Lies.”

As a location, Cuba was inspiring, if challenging, he said, but added, “I’m dreaming up reasons to go back.”

A stream of American filmmakers needing to hire Cuban equipment and crews would be a boon to the country’s independent production industry, which sprouted in the late 1990s as digital technology made filmmaking more accessible and state money for movies ran dry.

Some Cuban filmmakers worry, though, that their government will open its arms to Hollywood while continuing to give its own filmmakers the cold shoulder. Independent production companies in Cuba operate in a legal limbo, getting little or no funding from the state and often struggling to get their movies past the censors.

“It’s great that people from Hollywood want to come to Cuba, but it’s caught us at a bad moment,” said Carlos Lechuga, a Cuban director. “We have stories to tell, and right now we don’t feel that we can do that.”

The thaw between the United States and Cuba in 2014 prompted a swell of inquiries from Americans eager to shoot there. The next “Fast & Furious” installment may be partly shot in Cuba, a spokeswoman for its studio, Universal Pictures, said, adding that the company “is currently seeking approval from the United States and Cuban governments.”

And Cuban filmmakers have been fielding inquiries. “There isn’t a day that I am not meeting with a potential client from the United States,” said Oscar Ernesto Ortega, 29, whose El Central Producciones produces music videos, commercials and documentaries for clients like the Puerto Rican band Calle 13 and Red Bull Media House from offices in Miami and Havana.

Boris Crespo, founder of BIC Producciones, in Havana, said he had been working flat out for the past year, providing production services for Conan O’Brien’s four-day visit to Cuba last year and the History channel’s “Top Gear,” which filmed an episode in Cuba in January.

Mr. Carnahan, who worked with Island Film, another Havana production company, said he was struck by the “passionate” crew and the quality of Cuban actors. (The “House of Lies” shoot was planned before the new regulations went into effect, so producers had to get a license from the Treasury Department.)

What Cuba is missing, he said, are decent cellphone connections, fast Internet access and even “basic things — hammers — things that we don’t give much thought to.”

And the process of procuring shooting permits was extremely slow, he said.

Mr. Crespo said that the state-funded Cuban Institute of Cinematic Art and Industry “drowns in its own bureaucracy.”

The Strip from The New York Times (Doonesbury’s site was off-line at the time of publication.)

The Strip 02-14-16

Thursday, December 31, 2015

Looking Back/Looking Forward

It’s time for my annual re-cap and prognostication for the past year and the year coming up.  Let’s see how I did a year ago.

– Now that we have a Republican House and Senate and a president who isn’t running for re-election, get out the popcorn, and I mean the good stuff.  The GOP will try to do everything they can to destroy the legacy of Barack Obama, but they will end up looking even more foolish, petulant, infantile, and borderline nuts than they have for the last two years, and that’s saying something.  Repeals of Obamacare, Dodd-Frank, and recharged attempts to investigate Benghazi!, the IRS, and the VA will be like the three rings of Barnum & Bailey, all of which President Obama will gleefully veto.  As Zandar noted at Balloon Juice, “Over/under on when a Republican declares on FOX that Obama’s veto is  “illegal”, Feb 8.”

They did all that except actually pass the bills for President Obama to veto.  Instead they putsched John Boehner and replaced him with Paul Ryan who will more than likely face the same nutsery in 2016.

– Hillary Clinton will announce that she is running for president by March 2015 at the latest.  Elizabeth Warren will not run, but Bernie Sanders, the Gene McCarthy of this generation, will announce as an independent and become a frequent guest on MSNBC.  Jeb Bush, after “actively exploring” a run in 2016, will announce that he is running and quickly fade to the single digits when the GOP base gets a taste of his views on immigration and Common Core.  He may be popular in Republican polls, but those people don’t vote in primaries.  The frontrunners for the Iowa caucuses a year from now will be Rand Paul and Chris Christie.

Nailed that one except for the last sentence.  But to be fair I don’t think anyone had Donald Trump on their betting sheets a year ago, and if they did, it was more for the entertainment value than serious consideration as a Republican candidate.

– The war in Afghanistan is officially over as of December 2014, but there will be U.S. troops actively engaged in combat in what is left of Syria and Iraq in 2015.

More’s the pity.

– The U.S. economy will continue to improve at a galloping pace.  The Dow will hit 19,000 at some point in 2015 and oil will continue to flood the market, keeping the price below $60 a barrel and gasoline will sell for under $2 a gallon, and finally wages will start to catch up with the improving economy.  I blame Obama.

Except for my overly-optimistic prediction on the Dow, this pretty much came true, even down to the price for gasoline: I paid $1.99 last night in Miami, which is not the lowest-priced city in the country.  President Obama is not getting any credit whatsoever for helping the economy improve, which he should, but then the Republicans never blamed Bush for crashing it in the first place.

– The Supreme Court will rule that bans on same-sex marriage violate the Constitution.  They will also narrowly uphold Obamacare again.

Happy dance, happy dance.

– The embargo against Cuba will end on a narrow vote in the Senate thanks to the overwhelming influence of Republican donors who see 11 million Cubans starving for Dunkin Donuts and car parts and don’t care what a bunch of domino-playing dreamers on Calle Ocho think.

The embargo is still in place as a matter of law, but for all intents and purposes, it is crumbling.  U.S. airlines and cruise ships are setting schedules, direct mail service is resuming, and travel there has become routine.

– The Tigers will win their division again.

Oh, shut up.

– We will lose the requisite number of celebrities and friends as life goes on. As I always say, it’s important to cherish them while they are with us.

I hold them in the Light.

– I technically retired on September 1, 2014, but my last day at work will be August 30, 2019.  (It’s complicated.)  I’m planning a return trip to Stratford this summer — more on that later — and I’ll get more plays produced.  I will finish at least one novel in 2015.

This was a productive year for me on the writing front: several plays of mine were done either in full stage productions or readings, and more are on the way.  No, I did not finish a novel yet.

Now for the predictions for 2016:

  • Hillary Clinton will be the next President of the United States.  I have no idea who she will beat; I don’t think the Republicans know, either, but she will win, and I’m going to go out on a limb here and say that it will be a decisive win.  The GOP will blame everybody else and become even more cranky, self-injuring, and irresponsible.
  • The Democrats down-ticket will do better than expected by taking back the Senate and narrowing their gap in the House.  This will be achieved by the number of voters who will turn out to vote for them in order to hold off the GOP’s attempt to turn the country back over to the control of white Christian males.
  • The economy will continue to improve; maybe this is the year the Dow will hit 19,000.  The limiting factor will be how the rest of the world, mainly China, deals with their economic bubble.  I think a lot of the economic news will be based on the outcome of the U.S. election and the reaction to it.  If by some horrifying chance Donald Trump wins, all bets are off.  Economists and world markets like stability and sanity, and turning the U.S. over to a guy who acts like a used car hustler crossed with a casino pit boss will not instill confidence.
  • ISIS, which barely registered on the radar as an existential threat to the U.S. and the west a year ago, will be contained.  There will not be a large American troop presence in Syria and Iraq thanks in part to the response by the countries that themselves are being invaded by ISIS.  Finally.
  • Refugees will still be pouring out of the Middle East, putting the strain on countries that have taken them in.  It will be a test of both infrastructure and moral obligation, and some, such as Canada, will set the example of how to be humane.
  • Maybe this will be the year that Fidel Castro finally takes a dirt nap.
  • The Supreme Court will narrowly uphold affirmative action but leave room for gutting it later on.  They will also narrowly rule against further restrictions on reproductive rights.  And I am going out on a limb by predicting that President Obama will get to choose at least one more new justice for the Court, an appointment that will languish in the Senate until after the election.
  • Violence against our fellow citizens such as mass shootings will continue.  The difference now is that we have become numb to them and in an election year expecting any meaningful change to the gun laws or the mindset is right up there with flying pigs over downtown Miami.
  • Marriage equality will gain acceptance as it fades from the headlines, but the LGBTQ community’s next front will be anti-discrimination battles for jobs and housing.  It’s not over yet, honey.
  • We’re going to see more wild weather patterns but none of it will convince the hard-core deniers that it’s either really happening or that there’s anything we can do about it.
  • The Tigers will not win the division in 2016.  (Caution: reverse psychology at play.)
  • On a personal level, this could be a break-out year for my writing and play production.  I don’t say that every year.
  • A year from today I will write this same post and review what I got right and what I didn’t.  But stick around and see how I do on a daily basis.

Okay, it’s your turn.  What do you see for 2016?

Monday, December 14, 2015

Full Court Press

Sen. Marco Rubio (R-FL) thinks he can get rid of marriage equality by appointing justices who will overturn the Obergefell v. Hodges ruling last summer that made it legal.  Here he is on NBC yesterday with his logic:

CHUCK TODD: Are you going to work to overturn the same sex marriage?

MARCO RUBIO: I disagree with it on constitutional grounds. As I have said–

CHUCK TODD: But are you going to work to overturn this?

MARCO RUBIO: I think it’s bad law. And for the following reason. If you want to change the definition of marriage, then you need to go to state legislatures and get them to change it. Because states have always defined marriage. And that’s why some people get married in Las Vegas by an Elvis impersonator. And in Florida, you have to wait a couple days when you get your permit. Every state has different marriage laws. But I do not believe that the court system was the right way to do it because I don’t believe–

CHUCK TODD: But it’s done now. Are you going to work to overturn it?

MARCO RUBIO: You can’t work to overturn it. What you–

CHUCK TODD: Sure. You can do a constitutional amendment.

MARCO RUBIO: As I’ve said, that would be conceding that the current Constitution is somehow wrong and needs to be fixed. I don’t think the current Constitution gives the federal government the power to regulate marriage. That belongs at the state and local level. And that’s why if you want to change the definition of marriage, which is what this argument is about.

It’s not about discrimination. It is about the definition of a very specific, traditional, and age-old institution. If you want to change it, you have a right to petition your state legislature and your elected representatives to do it. What is wrong is that the Supreme Court has found this hidden constitutional right that 200 years of jurisprudence had not discovered and basically overturn the will of voters in Florida where over 60% passed a constitutional amendment that defined marriage in the state constitution as the union of one man and one woman.

CHUCK TODD: So are you accepting the idea of same sex marriage in perpetuity?

MARCO RUBIO: It is the current law. I don’t believe any case law is settled law. Any future Supreme Court can change it. And ultimately, I will appoint Supreme Court justices that will interpret the Constitution as originally constructed.

Let’s get a couple of points out of the way.  With the understanding that I’m not a lawyer and so my interpretation of the law is based solely on what I’ve read in the history books by people who know a lot more about the law than I do, let’s dispense with the idea that the Supreme Court cannot overturn state and local laws that impose discrimination on its citizens.  If that were truly the case, then Mr. Rubio is also in favor of overturning Brown v. Board of Education (1954), which undid discrimination in public schools, and Loving v. Virginia (1967), which ended bans on interracial marriage.  The Loving case is truly the precedent for the Court saying that state marriage laws cannot bar certain people from being married.  It didn’t say anything about marriage licenses or who can perform the ceremony, so Mr. Rubio is setting up a strawman argument with his line about Elvis impersonators.  The King’s Invokers can still do the ceremony in Vegas and Florida can still make you hold off your hunka hunka burning love for a couple of days.

Second, in order to have the Court review a case, there has to be a federal court ruling that challenges the freedom for same-sex couples to get married.  In other words, there has to be someone who can show damages to themselves as a result of the ruling.  That’s called “standing.”  So far no one has been able to prove that they suffered any damages because the gay couple next door decided to get married.  That was the crux of the argument in Hollingsworth v. Perry (2013), also known as the Prop 8 case, and why it was thrown out by the Supreme Court.  So unless there’s someone out there who can maneuver a case through the courts that passes the standing tests as set forth by this ruling (much less the laugh test), there won’t be a challenge to Obergefell v. Hodges to rule on no matter who Mr. Rubio thinks he will appoint to the court.  And even if there is, the Court is rarely inclined to overturn precedent, especially their own.

Be that as it may, Mr. Rubio’s bigoted view of marriage reminds us that electing a president brings with it the power to appoint justices to the Supreme Court and given the actuarial tables and nature, the next president will probably have that duty thrust upon him or her.  As I am fond of reminding voters, there’s more at stake in those three little words — The Supreme Court — than just who gets the most electoral votes.

Thursday, December 10, 2015

Supremely Racist

During oral arguments in the University of Texas affirmative action case at the Supreme Court yesterday, Justice Antonin Scalia let it be known what he really thinks.

Referencing an unidentified amicus brief, Scalia said that there were people who would contend that “it does not benefit African-Americans to — to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less — a slower-track school where they do well.”

He argued that “most of the black scientists in this country don’t come from schools like the University of Texas.”

“They come from lesser schools where they do not feel that they’re — that they’re being pushed ahead in — in classes that are too — too fast for them,” Scalia said.

He later noted, however, that they sure do have rhythm.