​​Extremism in the defense of liberty is no vice.  And moderation in the pursuit of justice is no virtue.

- Senator Barry Goldwater, 1964  

Injustice anywhere is a threat to justice everywhere.

- Dr. Martin Luther King, Jr., 1963  

Bringing Common Sense to Political Commentary Since 2004
David Bleidistel, Editor

DAVE’S BLOG
                                                                                                                                                           

The BLOG page will primarily be used to post quick thoughts, rather than the somewhat long-winded articles that make up the rest of the website. It won’t be a “Daily” type of BLOG, however; it will be more of a “Whenever Dave Can Get To It” type of BLOG.

Sorry, but Dave does have other things to do.



Why?    WHY??   WHY???
April 28, 2016

Yesterday Ted Cruz stunned everybody - and I do mean everybody - by announcing at a rally in Indianapolis that if he were the Republican nominee, he would select Carly Fiorina as his running mate. The big question on everybody's mind is "Why"?

So far as I've heard, no one has come up with a very good answer to that question - actually, these questions (plural). Why Fiorina? Why now? Why in Indianapolis? Why make an announcement of a VP selection immediately after being mathematically eliminated from clinching the nomination (as Cruz was on Tuesday)?

During her campaign, Fiorina turned in some of the best debate performances of any of the candidates - her tough yet graceful smack down of Trump after he insulted her looks was easily the highlight of her campaign - but when voters actually began casting ballots she sank quickly and withdrew from the race in February. She endorsed Cruz in March. Since endorsing Cruz, Fiorina has been traveling the country as a Cruz surrogate, giving speeches and holding rallies in his support. Clearly, Fiorina's loyalty to Cruz is above reproach. But what - other than that loyalty and the fact that she is a woman - would she bring to the ticket?

Many would argue that, assuming she is otherwise qualified to be President (which she is, given her business experience), being a woman is more than enough - and there is certainly some truth to that, especially since the GOP ticket will be facing Hillary Clinton in November, and the GOP needs all the help it can get with women voters. However, despite being the only woman - out of 17 original candidates - in the race for the Republican nomination, she did extremely poorly when it came to getting actual votes, so how much she would help the ticket is questionable at best. It's not like she has a history of electoral success; her only political experience prior to this campaign season was a Senate run in California against Barbara Boxer in 2010 - a Republican "wave" year - and she lost.

There were also some faux pas of her own while she was a candidate - all of which will be brought up again. One example was the time she corralled a group of pre-school children who were on a field trip to a botanical garden - where Fiorina happened to be giving a speech - and she turned the group of 4-year-olds into "props" for her anti-abortion speech. As you might well imagine, the children's parents - many of whom were pro-choice and who had merely signed permission slips for their kids to go look at some flowers - didn't know anything about this until they saw it on TV, and were understandably outraged. Fiorina withdrew from the race shortly afterward.

The one thing that Fiorina will undoubtedly bring to the ticket, for better or for worse, is her record. Mostly this would fall under the "for worse" category. Yes, Fiorina is a pioneer in the business world, having been the first female CEO of a Fortune Top-20 Company (Hewlett-Packard), but her tenure there was - and this is being very generous - rather controversial. While the merger with Compaq was completed on her watch, the merger did not go particularly well (at least initially), and resulted in what her critics will most certainly bring up repeatedly - 30,000 layoffs and a massive company shift toward outsourcing. Finally, Fiorina - unlike those 30,000 people who were laid off - received a lavish severance package worth a reported $20 million when she was fired by HP. This did not - and will not - play well with middle-class voters.

Meanwhile, Trump has already labeled Cruz's announcement as just another "act of desperation". This tactic seemed to work when applied to the "collusion" (Trump's term) between Cruz and John Kasich - Trump called that an effort by two political insiders to subvert the will of the voters (actually, it's kind of hard to argue with that; that's precisely what it was), and Trump's numbers in Indiana have gone up since then. It remains to be seen how this announcement will affect the race, but if Trump wins Indiana this announcement will look just like the "act of desperation" Trump claims it to be. A Trump win in Indiana, especially in the face of the "collusion" and this "act of desperation", could very easily turn into a steamroller that flattens everyone in its path as the primary season wraps up, allowing Trump to clinch the nomination.

Here's what I think: the announcement of the selection of Fiorina was done how, where, and when it was done for a very specific reason - the Indiana primary this Tuesday, May 3rd. Ted Cruz is desperate to stop Trump, and Indiana, a "Winner-Take-All" state with 57 delegates (the largest trove of delegates remaining other than California) is being called the "last stand" in the effort to deny Trump the nomination. Trump is leading in polls in the state, but only by single digits and with support percentages only in the high 30's to low 40's range, meaning he is potentially vulnerable there. He also has a major problem with women voters (can't think why). Cruz is probably looking to "shake up" the race in a way that will help him make up ground on Trump in Indiana, and making major inroads among women voters was likely a very appealing possibility as a means of doing that. This is why the announcement was made now, so unusually early in the campaign, and why it was made in Indianapolis. If it works, then things could get very interesting, because it will be difficult - not impossible, but very difficult - for Trump to clinch the nomination before the convention.

Speaking of the convention, another factor that has been hinted at by some in the media is that Fiorina might have a tough time being approved as the Vice Presidential nominee by the full convention. She is not particularly popular with the GOP "establishment", and given how this race has gone so far, I don't think it is unreasonable to wonder whether the convention would "rubber stamp" the Presidential candidate's choice this time around (conventions have ratified the Presidential candidates' choices ever since Franklin Roosevelt insisted on Henry Wallace in 1940, threatening to withdraw his own name from the race if the convention did not go along). Cruz's recent efforts to pack the convention with his supporters could mitigate this somewhat, but the delegates to the convention want their ticket to win in November, and Fiorina wouldn't exactly inpire confidence among the delegates.

So why Fiorina? Good question - we'll just have to wait and see how this all plays out. The first real test of this strategy will come on Tuesday in the Indiana primary.

Happy watching!

 




Super Tuesday IV:
The Aftermath

Super Tuesday IV is in the books.  The voting is done in five more states - Connecticut, Delaware, Maryland, Pennsylvania, and Rhode Island - and the results make it clear that it's all over but the shouting for the Democrats, but it's absolutely NOT over on the Republican side.

On the Democratic side, Hillary Clinton won in four of the five states, but with proportional delegate allotments in all states, this only represented a net gain of 58 delegates over Bernie Sanders (204-146).  For example, Sanders won in Rhode Island, but only won 13 delegates, while Clinton received 11 - a difference of just two delegates.  Clinton won in Connecticut, and received 27 delegates compared to 25 for Sanders (thereby making up for the "loss" in Rhode Island).  In Delaware Clinton received 12 delegates, while Sanders won 9. The bigger margins came in Maryland, where Clinton received 59 delegates to 32 for Sanders, and Pennsylvania, where she won 95 delegates and Sanders won 67.

The bottom line here is that Clinton is now just 231 delegates shy of clinching the nomination with 1,016 delegates in 14   contests still remaining on the calendar - meaning she needs to win about 23% of the remaining delegates.  Conversely, Sanders would need to win about 78% of the remaining delegates (these numbers do not reflect the remaining unpledged "Superdelegates").  Sanders has vowed to continue all the way to the last primary, but the reality is that Hillary will clearly be the nominee. 

On the Republican side, Donald Trump had the "yuge" night that he was hoping for - but was it enough?  Trump won all of the available pledged delegates in all four "Winner-Take-All" states:  Connecticut (28), Delaware (16),  Maryland (38), and Pennsylvania (17; there are also  54 more Pennsylvania delegates which are "unbound"), and 10 of 18 in the proportionally-allocated state of Rhode Island.  His current total of 954 is just 283 delegates short of clinching the nomination with 502 delegates remaining to be won in 10 states, meaning he needs to win 56% of the remaining delegates to  win the nomination before the convention, which remains somewhat do-able because of the "Winner-Take-All" and "Winner-Take-Most" contests in 6 of the remaining 10 states.   Ted Cruz was officially mathematically eliminated from clinching the nomination last night, and John Kasich has been mathematically eliminated for months,  meaning that the only hope either Cruz or Kasich have is a contested convention with multiple ballots.  To this end, Cruz and Kasich announced a deal (or an  act of "collusion", according to Trump), in which they agreed that Kasich won't compete in Indiana and Cruz won't compete in either New Mexico or Oregon.  While this won't make much difference in New Mexico in Oregon, since  both allocate their delegates  proportionally, it could make all the difference in Indiana, which allocates its 57 delegates on a "Winner-Take-All" basis.  If Cruz wins in Indiana on May 3rd, things will become much more difficult for Trump;  he would suddenly need to win 64% of the delegates available in the 9 states left to vote after Indiana (compared to 51% if he - Trump - were to win Indiana).  A win in Indiana would also give Cruz some momentum, which could help him make up ground in other states, including California - making it all but impossible for Trump to clinch.   The problem for Cruz is that the most recent polls coming out of Indiana - from WTHR/Howey Politics, FOX News, and  CBS News/YouGov -  all  show  Trump leading there by a margin of 5-8 points.  However, his  support in  these polls ranges from 37-41%, indicating that he could be vulnerable there.  

However the remaining primaries play out, Trump will be the only candidate with any chance of clinching the nomination, and whether he clinches or not he will be the candidate with the most delegates and the most popular votes - both by wide margins - going into the convention in Cleveland in July.  Frankly, it's hard to see how the party denies Trump the nomination under such circumstances.  Assuming that Trump can be denied on the first ballot - a distinct possibility, depending on how the "unbound" delegates vote - then Ted Cruz could very easily emerge as the nominee due to his phenomenal "ground game" and his campaign's efforts at the local, regional, and state levels of the delegate selection process (see the previous post for details on this).  If this were to happen, however, Cruz's nomination will come at a heavy price; the support of Trump's supporters.  With millions more votes than Cruz, Trump will have an easy time arguing that he was "robbed" by a "rigged" system, and his supporters will agree.  With a divided party and a flawed candidate like Cruz (not that Trump wouldn't also be "flawed"), I don't see any way the GOP wins in November.

This could all come down to  "unbound" delegates, which, unlike the Democratic "superdelegates",   is something that hasn't received much attention in the media.  I expect that to change as we get closer to the end of the primary season.


  

AFTER NEW YORK
April 21, 2016

Well, New York has voted, and as expected, Hillary Clinton and Donald Trump won their respective primaries. The only real surprise was the size of Trump’s victory, especially in the delegate count, which put him back on a do-able path to the magic number or 1,237 delegates needed to clinch the Republican Presidential nomination.

First, the Democrats:

There are precisely 1400 delegates still available to be won in19 contests (in 16  states, 2 territories and the District of Columbia) between now and June 14th.  A total of 2,382 delegates are needed to clinch the nomination. As of this writing (April 21st), Hillary Clinton has amassed 1,930 delegates – 1,428 delegates won through primaries, caucuses, and conventions, and 502 superdelegates; Bernie Sanders has accumulated 1,189 delegates – 1,151 delegates won and 38 superdelegates.

If she retains her current roster of 502 committed superdelegates, Hillary Clinton only needs 452 more delegates – less than a third of those still available to be won in the remaining primaries (these numbers do not include any remaining uncommitted superdelegates) – to clinch. Bernie Sanders, however, needs 1193 more delegates – or about 85% of those remaining – to clinch. Clearly Sanders is not likely to accomplish this, especially since the Democrats use a proportional delegate allocation in all of the states. Another factor is that Sanders has performed best in states holding caucuses, but all remaining contests are primaries, with the exceptions of the territories of Guam and the U.S. Virgin Islands, which will hold caucuses but only have a total of  14 delegates between them. Bernie’s stated strategy is to try to woo superdelegates away from Hillary Clinton, but this is problematic at best. The superdelegates are mostly members of the Party Leadership and elected officials, almost all of whom are loyal to the Democratic “establishment”.  Hillary Clinton is very much the “establishment” candidate, while Bernie Sanders is running an “insurgent” campaign against the “establishment”. It’s possible he may be able to pick off a few superdelegates here and there, but there is no way he will be able to get enough of them to abandon Hillary tod win the nomination himself – unless he catches up with Hillary in delegates won through the primaries, caucuses, and conventions, at which point he could argue that he, and not Hillary, is the choice of Democratic voters. Given that Clinton is ahead of Sanders by 277 delegates won (1,428 to 1,151), Sanders is not likely to be successful in this. He would need to win 839 of the remaining 1400 available delegates (about 60%) to surpass Clinton in delegates won, and that’s not going to happen; Clinton has sizable leads in most of the upcoming states (such as Maryland, Connecticut, Pennsylvania, and California). Without surpassing Clinton’s total of delegates won through primaries, caucuses, and conventions, Sanders won’t be able to convince many of the superdelegates to switch their votes.

The bottom line here is that the race for the 2016 Democratic Presidential nomination is over, and Hillary Clinton has won. Although things have gotten a bit “testy” between Clinton and Sanders lately, this is a very recent development – these two have been amazingly polite and respectful to each other (especially compared to the Republicans) for most of this campaign, and they voted the same way about 95% of the time over the years they served together in the Senate.  I don’t foresee any particular problems in uniting the party for the general election in the Fall.

And now on to the Republicans:

There are 15 states left to vote in the race for the 2016 Republican Presidential nomination, representing a total of 674 delegates.  1,237 delegates are needed to clinch the nomination.  As of this writing (April 21st), Donald Trump has 845 delegates (plus a commitment from 1 “unbound” delegate), Ted Cruz has 559 (plus commitments from 16 “unbound” delegates), and John Kasich has 148.   

This all sounds relatively simple, but the Republican rules make things a little more complicated.  For starters, two candidates withdrew from the race with some delegates bound to them – Marco Rubio had 171 delegates when he left the race, and Ben Carson had 8.  The current disposition of these delegates is hard to pin down under GOP convention rules, but for purposes of this discussion it is enough to know that, while  the vast majority of these will be most likely bound to Rubio and Carson on the first ballot at the convention, they will be free to vote for whomever they please on later ballots.  There are also another 75 delegates which, according to Real Clear Politics, have yet to be allocated in a few of the states and territories that have already voted: 2 from New York, 18 from North Dakota, 7 from American Samoa, 1 from North Carolina, 8 from Guam, 4 from Wyoming, 9 from the U.S. Virgin Islands, 3 from Colorado, 3 from Virginia, 3 from Oklahoma, 2 from Nevada, 3 from New Hampshire, 7 from Iowa, and 5 others.  To make things even more complicated, some delegates are “unbound” – specifically from North Dakota, Wyoming, Colorado, and the territories of Guam and American Samoa.  Of these, Ted Cruz has received commitments from 16 delegates, and Donald Trump has 1, as noted above.  The math gets a bit “fuzzy” with the GOP race because of unbound delegates, the disposition of delegates originally won by Rubio and Carson, convention rules (and possible changes to those rules), and other factors.  For simplicity’s sake, let’s stick with the three remaining candidates’ current delegate counts listed above, (including those “unbound” delegates who have committed to Trump and Cruz), and the 674 delegates left in the 15 remaining states.

In order to reach the magic 1,237 delegates needed to clinch the nomination, Donald Trump needs 391 of the remaining 674 delegates, or about 58%.  Given that he has won less than half of the delegates so far, many have questioned whether he can win 58% of those remaining.  However, it is actually mathematically quite do-able for Trump because 9 of the remaining 15 states – representing 497 of the remaining 674 delegates – allocate their delegates on a “Winner-Take-Most” basis (click here for details on this delegate allotment), and of these 9 states, Trump is currently leading in at least 5 of them:  Pennsylvania (71 delegates, but 54 of them are unbound) by almost 20 points, Maryland (38 delegates) by almost 15 points, Delaware (16 delegates) by 37 points, New Jersey (51 delegates) by 28 points, and California (172 delegates) by 15 points.  If these leads hold, these 5 states could give Trump as many as 294 delegates of the 391 he needs, leaving him potentially just 97 delegates short of clinching the nomination (none of the other four “Winner-Take-Most” states – Indiana, South Dakota, Nebraska, and Montana – have adequate polling data available to know who is leading, so we’ll just have to wait and see what happens in those states).  There are several ways which, in combination, could yield Trump those 97 more delegates:

  • he could win in other “Winner-Take-Most” states – Indiana (57 delegates), South Dakota (29 delegates), Nebraska (36 delegates), and/or Montana (27 delegates), and/or
  • he could win delegates in the 5 remaining states which allocate their delegates proportionally (Connecticut, Rhode Island, Oregon, Washington State, and New Mexico), and/or
  • he could “win” delegates from West Virginia, where delegates are elected directly, and/or
  • he could  woo remaining unbound delegates.

Factoring in the commitments from those 16 “unbound” delegates, Ted Cruz would still need 662 of the 674 remaining delegates, or more than 98% – which will not happen – and John Kasich was mathematically “eliminated” months ago, meaning he cannot reach the magic 1,237 even if he won every remaining delegate.  Clearly the only reason they have remained in the race is that both Cruz and Kasich are counting on Trump not being able to reach the magic 1,237 delegates either, which would force an “open” convention – something that has not happened since 1976.  That year, President Gerald Ford had not clinched the nomination before the convention, but by convincing enough of the “unbound” delegates (there were more of them back then), he was able to win the nomination over Ronald Reagan on the first ballot anyway.  What both Cruz and Kasich are hoping for goes beyond this – they need a truly contested convention with multiple ballots.  If this were to happen, Trump’s nomination hopes would be in serious trouble.  This is because Cruz has demonstrated a brilliant understanding of the process and rules, and has developed an incredible “ground game”.  What Cruz understands – and Trump did not understand until recently (and he was definitely not happy about it) – is that primaries and caucuses only determine the number of delegates bound to each candidate; they do not determine who those delegates are (except in states where delegates are elected directly, such as West Virginia).  In some states (specifically Wyoming, Colorado, and North Dakota) it’s even more extreme:  the caucuses that were held were essentially meaningless, not binding any delegates to any candidate.  In most states, delegates are selected separately from the primary or caucus, and Cruz recognized from the start that delegates are human, each with their own preferences among the candidates, and the vast majority will be free to vote for whomever they wish starting with the second ballot (a few states require some of their delegates to remain bound to a candidate for the first and second ballot, but all delegates will be free on the third ballot and beyond).  To this end, the Cruz campaign has been working hard in the local, regional, and state delegate selection processes in each state in order to ensure that as many of the people as possible who are selected as delegates are Cruz supporters, meaning that once they are freed from being bound to Trump (or whoever else), they would vote for Cruz on subsequent ballots.  Trump apparently did not realize this, and had a bit of a conniption fit when Cruz successfully “won” most of the delegates from Wyoming (23 out of 25), and all of the delegates from Colorado (34) and North Dakota (10) at the state conventions, none of which reflected the results of the caucuses held in those states.  Trump’s whining about the rules of the game, however, will not win him the nomination – these are the rules that were in place when Trump entered the race, and his not understanding the rules is not the Party’s problem.  In fact, by criticizing these rules (he has claimed that the system is “rigged”), he is demanding that the rules be changed in the middle of the game – to his benefit, of course – just because he doesn’t like how the game is going.  This is hardly “Presidential” behavior, and he has been heavily (and properly) criticized for it.

The bottom line here is that, while this race is certainly not over yet, the most likely scenario appears to be that Trump wins the nomination prior to the convention.  If he somehow fails to do so, then the most likely result would be the most contentious political convention in recent memory and Ted Cruz emerging as the Republican nominee.

If this were to happen, how would that play out?  I see four possibilities:

  • Cruz could select Trump as his running mate, thereby attempting to unite the party and give the GOP a fighting chance against Hillary Clinton in November.  Conversely, if Trump wins the nomination, he could select Cruz as his running mate for the same reason.  Given the vitriol we have witnessed and the very public bitterness of the feud between them, however, I don’t think there is a snowball’s chance in hell of this happening, whichever one comes out on top.
  • Trump could fall in line behind Cruz as the nominee and call on his supporters to do the same (or, if Trump wins, Cruz could fall in line behind him), again attempting to unify the party for the general election.  I don’t find this likely either – such a magnanimous act would be completely outside of Trump’s personality, and Cruz has been too severe in his criticism of Trump to turn around and try to convince Americans that Trump should be President.  Besides, Trump has said repeatedly that he needs to be “treated fairly” by the party, and there is no way he would feel he had been “treated fairly” if he is denied the nomination after going into the convention with more delegates and more popular votes than any other candidate (he currently leads Cruz – his closest rival – by 286 delegates and more than 2.3 million votes).  Also, as noted above, he and Cruz absolutely despise each other.
  • Trump could run in the general election as an Independent candidate.  This is a distinct possibility – it would absolutely fit with Trump’s personality, and he recently backed away from his pledge to support the Republican nominee if he doesn’t win – and would unquestionably guarantee that Hillary Clinton wins in November.  The electoral math is already difficult enough for the GOP; it becomes impossible if both Cruz and Trump are on the ballot, thereby splitting the GOP vote.  The only possible result of this scenario would be an electoral landslide for Hillary Clinton, since splitting the GOP vote would mean that the Republicans have no chance at all in any of the battleground states (giving Clinton a starting point equal to President Obama’s 332 electoral votes from 2012), and also meaning that historically Republican states like Indiana, North Carolina, Georgia, Arkansas, Tennessee, Kentucky, Arizona, Montana, and the Dakotas could possibly fall to the Democrats (since Trump and Cruz splitting the Republican vote would mean they could both drop below Clinton’s percentage of the vote, giving her a plurality in these states).  Clinton’s percentage of the nationwide popular vote probably wouldn’t change much, because the overall vote totals wouldn’t change significantly, but she wouldn’t need that percentage to change to win the election – don’t forget that her husband won the Presidency in 1992 with 370 electoral votes (including wins in Georgia, Kentucky, Louisiana, Tennessee and WestVirginia), but just 43% of the nationwide popular vote because a 3rd party candidate (Ross Perot) pulled votes away from the Republican candidate.
  • Trump could “take his ball and go home”, thereby fracturing the GOP even without mounting a 3rd party campaign.  This is also a distinct possibility – like a 3rd party campaign, it would absolutely fit with Trump’s personality – and would also virtually guarantee that Hillary Clinton wins in November, because Ted Cruz cannot win without a united GOP.  If a significant percentage of Trump’s share of the GOP voters stay home on Election Day, Cruz loses by the same (or at least similar) electoral landslide as if Trump runs a 3rd party campaign.  Hillary Clinton’s percentage of the popular vote would increase, possibly significantly, depending on how many of Trump’s supporters don’t turn out to vote.  Meanwhile, Trump could spend the rest of his life telling anyone who would listen that everything would have been so much better if he had not been cheated out of the nomination, since – at least in his delusional mind – he would absolutely have beaten Hillary Clinton, no doubt by a “yuge” margin. 

So sit back, relax, and enjoy the show for the next seven weeks and beyond – you can’t buy this kind of entertainment!
  



MERRICK GARLAND - LAMB TO THE SLAUGHTER?
March 17, 2016

Yesterday President Obama nominated Judge Merrick Garland, the Chief Judge of the United States  Court of Appeals for the District of Columbia Circuit, to fill the Supreme Court vacancy left by the death of Justice Antonin Scalia.  Given the Senate Republicans' stated refusal to even consider any nomination from President Obama (regardless of the qualifications of the nominee), it is likely that Mr. Garland will be little more than a "lamb to the slaughter".

Nevertheless, President Obama has made a brilliant choice.  Here's why:
  • Garland was confirmed by the Senate  for his   seat on  the United States  Court of Appeals for the District of Columbia Circuit  in March of 1997 with 76 votes, including a majority of Republican Senators.  Among the Republicans who voted for his confirmation were  current Republican  Senators  John McCain of Arizona,  Orrin Hatch of Utah,  Susan Collins of Maine, and  James Inhofe of Oklahoma.  This would make it difficult to argue that Garland would have trouble being confirmed if given a vote.
  • Garland's being a member of the  United States  Court of Appeals for the District of Columbia Circuit is also significant in that this is the same Court  which produced Justice Scalia himself, along with three other current Supreme Court Justices and many past Justices, making it difficult to argue that Garland doesn't have the appropriate experience.
  • As Chief Judge of the United States  Court of Appeals for the District of Columbia Circuit,  a position he has held since 2013, Garland is already running "the second highest court in the land" (as the DC Circuit Court is often called), making him the highest-ranking federal judge in the country outside of the Supreme Court Justices themselves.
  • Garland is extremely well thought-of on both sides of the aisle, and is known for his moderate views, which will make it difficult for Republicans to claim that President Obama is trying to put a wildcat liberal on the Supreme Court  (not that this would stop some Republicans from trying to make this claim, but don't be fooled:  Garland is no liberal).
  • Garland has more years on the federal bench than any Supreme Court nominee in American history (19 years, almost to the day), which, together with his service as Chief Judge of "the second highest court in the land",  will make it difficult to challenge his qualifications.
  • Garland is 63 years old,  15 years  older than Judge Sri Srinivasan (also of the DC Court), widely viewed (by myself and many others) as another potential nominee,  and just 16 years younger than Justice Scalia was at the time of his death.  This is important because this will make it difficult to argue President Obama is trying to influence the Court for decades; Garland would only have served on the Supreme Court for about half of Justice Scalia's tenure on the Court when he reaches the age of 79 (Scalia's age upon his death) .

What all of this boils down to  is that President Obama has carried out his Constitutional duty to nominate someone to fill a vacancy on the Supreme Court, and he has done so in an entirely reasonable  manner.   The  Senate Republicans - and especially Senate Majority Leader Mitch McConnell - will now look extremely unresonable  when they refuse to take up the nomination.  Nominating Judge Garland  was probably President Obama's best possible move, and the ball is now firmly in the Republican's court, if you'll pardon the pun. 

How unreasonable will the Senate Republicans look when someone as qualified, as moderate, and as confirmable as Judge Garland becomes the only Supreme Court nominee in American history to not receive an up-or-down  vote on his confirmation before the end of a Congressional term?

How foolish will the Senate Republicans look if Hillary Clinton wins the Presidency (which looks more probable by the day) and the Democrats win back the Senate Majority (also  a distinct possiblity)?  A President Hillary Clinton, working with a Democratic majority in the Senate, is not likely to nominate someone as moderate as Judge Garland.





LOOKING AT THE CURRENT STATE OF THE PRESIDENTIAL RACES
March 16, 2016

So “Super Tuesday II” is in the books.   On the Democratic side, Hillary Clinton notched victories in 4 of the 5 states voting yesterday (Florida, Ohio, North Carolina, and Illinois; Bernie Sanders barely squeaked by in Missouri), and now has a dominating lead in delegates (1599 to 844). She needs to win just 39% of the remaining delegates to reach the 2382 needed to clinch the nomination. Sanders, on the other hand, needs to win 77% of the remaining delegates - virtually impossible in a race where all states allocate delegates on a proportional basis.  [UPDATE (3/17/2016):  Numbers have continued to come in, and it now appears that Hillary swept the board on Tuesday, winning all five states - including Missouri by about 1500 votes (0.2%).]

Stick a fork in it. This race is done.

On the Republican side, Donald Trump has taken a prohibitively large lead. Ted Cruz had a very disappointing night (he gained just 27 delegates out of 367 at stake in 5 states and 1 territory), and Marco Rubio did so poorly (he won just 6 delegates and lost his home state of Florida by almost 19 points) that he dropped out of the race. John Kasich won his home state handily, and will stay in the race – at least for now.

So where does this leave us?

1237 delegates are needed to clinch the nomination, and there are 946 delegates available in the 21 states and territories left to vote. With 646 delegates won, Donald Trump will need to win 63% of the remaining delegates – which will be very difficult but is do-able if he wins enough of the “Winner-Take-All” states. Ted Cruz, with 397 delegates won, would need to win 89% of the remaining delegates – which is highly unlikely under any scenario. John Kasich, with just 142 delegates won, cannot reach the 1237 threshold even if he wins every remaining delegate.

So what does this say about the state of the race? Given these numbers, the most likely scenario at this point is that no one reaches the 1237 delegates necessary to clinch a majority vote on the first ballot at the convention. Since the delegates won during the primary season are bound to their candidate for the first ballot, no one will win the nomination on that first ballot. When this happens, all delegates become free to vote for whomever they wish on all subsequent ballots, and the wheeling and dealing will begin in earnest. Additional candidates can be nominated on the convention floor, and literally anyone could emerge as the Republican nominee. Some names that have been mentioned as possible “compromise candidates” are Mitt Romney, Nikki Haley, and Paul Ryan. It is a completely unpredictable situation.

This could get very interesting indeed.

So let me ask this: if Donald Trump goes into the GOP convention with more delegates and more popular votes than any other candidate (which now seems inevitable), but without having reached the 1237 threshold (which now seems to be the most likely outcome), and is then denied the nomination, how does that play out? Trump has agreed to support the Republican nominee, as long as he feels he has been “treated fairly” by the GOP, but under this scenario it is hard to imagine him believing he was “treated fairly”. If this happens, I see three possible scenarios. First, Trump could launch an Independent bid for the Presidency, splitting the GOP vote and handing the Presidency to Hillary Clinton (I believe this to be the most likely. Second, Trump would not run as an Independent, but his supporters would be completely turned off by the whole thing and would likely stay home on Election Day in November – again handing the election to Clinton. The third possibility is that Trump would support the nominee and tell his supporters to do the same, but that doesn’t seem likely (given how angry he would be, it just doesn’t fit with his personality). When combined with the electoral math working against the Republicans to begin with, things are definitely looking good for Hillary Clinton becoming the 45th President of the United States.





Christie Endorses Trump
February 26, 2016

So Chris Christie endorsed Donald Trump this afternoon. Apparently this came as a bit of a shock, and people are asking why Christie would do such a thing. The answer (I think) can be expressed in two words - "Vice President".

Christie is in his last term as New Jersey's Governor, and he clearly did not succeed as a Presidential candidate in his own right. He's probably not interested in Bob Menendez's Senate seat (for many reasons, but mostly because a freshman Senator who only has one vote out of a hundred doesn't have much power), so his best hope is to hitch his wagon to Trump's. If they win, he's almost a shoe-in for the nomination next time (2024, assuming Trump runs for re-election in 2020). If they lose, Christie would still have a leg up on the field in 2020. It's a win-win for him.





STILL MORE ON THE SUPREME COURT VACANCY
February 25, 2016

The Senate Republicans, led by Majority Leader Mitch McConnell of Kentucky, have now "doubled down" on their refusal to consider any nominee that President Obama may decide to put forward to fill the Supreme Court vacancy left by the death of Justice Antonin Scalia. This week they announced (and were joined by most Republican Senators - Mark Kirk of Illinois and Susan Collins of Maine, to their individual credit, are notable exceptions) that they will not even offer the courtesy of MEETING with the President's nominee, something usually done as a matter of course.
The GOP's LIES to the American people on this matter MUST be exposed. I find myself cringing when I see and hear Senators like Lamar Alexander of Tennessee (a former Presidential candidate in 1996 and 2000), Chuck Grassley of Iowa (Chairman of the Judiciary Committee), and John Cornyn of Texas (the Senate Majority Whip, the #2 Republican in the Senate) exposing their hypocrisy:

“There’s no excuse for not considering and voting upon a well­ qualified judicial nominee in the United States of America today… Just because it’s a presidential election year is no excuse for us to take a vacation. And we’re here. We’re ready to go to work.” 
- Senator Lamar Alexander, 2008

“It is reasonable to give the American people a voice by allowing the next president to fill this lifetime appointment to the Supreme Court.” 
- Senator Lamar Alexander, 2016

"The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president’s term.”
- Senator Chuck Grassley, 2008

“The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year.”
- Senator Chuck Grassley, 2016

“Now is the perfect time for a new politics of judicial confirmation to arise where Republicans and Democrats work together to confirm qualified men and women to the federal bench. Now is the perfect time because, of course, we’re in a presidential election year and no one yet knows who the next president will be. What a unique opportunity to establish that regardless of the next president’s party, the nominees will be treated fairly and on the basis of their qualifications, and not on the basis of ancient political squabbles.”
- Senator John Cornyn, 2008

"I don't see the point of going through the motions   [of meeting with the nominee]"
- Senator John Cornyn, 2016

Other GOP Senators have echoed these comments. Please understand that when the Republicans say things like “The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year” (Chuck Grassley), that this is a LIE, as  Grassley himself  pointed out in 2008!  What the GOP is doing here is totally, completely, and utterly unprecedented - AND THEY KNOW IT!

Given these comments, especially about this being "standard practice over the last nearly 80 years", some of the information from my last post bears repeating.

 There were seven occasions in the 20th century when a vacancy occurred on the Supreme Court during a Presidential   election year. In 6 of the seven, the sitting President nominated - and the Senate confirmed - a new Justice during the election year. In the 7th circumstance (in 1956), Congress had adjourned (rendering Senate Confirmation impossible), so President Eisenhower used a "recess appointment" to put William Brennan on the Court; Brennan was then formally nominated and confirmed the following year.

The other six vacancies that were filled were as follows:
  • Anthony Kennedy – 1988 – nominated by Ronald Reagan (his third try to fill the same vacancy)
  • Frank Murphy – 1940 – nominated by Franklin Roosevelt
  • Benjamin Cardozo – 1932 – nominated by Herbert Hoover
  • John Hessin Clarke – 1916 – nominated by Woodrow Wilson
  • Louis Brandeis – 1916 – nominated by Woodrow Wilson 
  • Mahlon Pitney – 1912 – nominated by William Howard Taft

I REPEAT:    THERE HAS NEVER - IN OVER 220 YEARS - BEEN A VACANCY ON THE SUPREME COURT THAT "WAITED" FOR THE NEXT PRESIDENT TO FILL THE SEAT, REGARDLESS OF WHEN THE VACANCY OCCURRED.

EVER!!!!

President Obama has made it clear he will put forward a nominee - as he is Constitutionally bound to do. The Senate should also fulfill its Constitutional role.




MORE ON THE SUPREME COURT VACANCY
February 17, 2016

As noted in yesterday's post, Senate Majority Leader Mitch McConnell has said, "The American people should have a voice in the selection of their next Supreme Court Justice."

But the American people DID have their voice! When President Obama was re-elected in 2012, they chose him to be President - and to carry out all of the powers and duties of that office - for the next four full years. That's four years - not a little over three years. This includes the power to nominate people to the Supreme Court in order to fill any vacancy that occurred during that full four-year term.

McConnell and the other Republicans have repeatedly pointed to the 2014 mid-terms to make the point that, while the people chose President Obama in 2012, they chose the Senate in 2014.  This is only partially true - only a third of the Senate was up for re-election that year.   McConnell's position is just complete BS.   For those of you who think I'm only saying this for partisan reasons, Democratic Senator Chuck Schumer - the Vice Chairman of the Democratic Caucus at the time, and soon to take Harry Ried's place as the Democratic leader in the Senate - was just as wrong when he suggested the same thing about future nominations from George W. Bush back in 2007, and so was Joe Biden in 1992, when he said much the same thing about future nominations from the first President Bush (Senator McConnell has gone so far as to suggest he is only following the "Biden Rule", for which I have to give him credit:   well played, sir - but still wrong!).  While it is worth noting that both Shumer and Biden were talking about hypothetical vacancies  created by a Justice retiring voluntarily simply because they believed the next President would be from the opposing party, and who might retire   specifically so that a President of their own party would choose their successor, they were both just as wrong then as the Republicans are now.  Even the Founding Fathers made it clear that McConnell's position flies in the face of the Founders' intent.

If you need further evidence, the following is a list of EVERY Supreme Court vacancy that has occured and/or been filled during a Presidential election year  at any time in American history.  These  Supreme Court Justices were all nominated and/or confirmed during the final year of a President’s term:
  • Anthony Kennedy – 1988 – nominated by Ronald Reagan (his third try to fill the same vacancy)
  • William Brennan – 1956 – nominated by Eisenhower (Eisenhower originally used a “recess appointment” to put Brennan on the Court; Brennan  was later confirmed as an Associate Justice in his own right)
  • Frank Murphy – 1940 – nominated by Franklin Roosevelt
  • Benjamin Cardozo – 1932 – nominated by Herbert Hoover
  • John Hessin Clarke – 1916 – nominated by Woodrow Wilson
  • Louis Brandeis – 1916 – nominated by Woodrow Wilson
  • ​Mahlon Pitney – 1912 – nominated by William Howard Taft
  • Howell Edmunds Jackson – 1893 – nominated by Benjamin Harrison, AFTER the 1892 election of Grover Cleveland (to a non-consecutive second term); Harrison was a true “lame duck” who had lost his re-election bid
  • Melville Fuller – 1888 – nominated by Grover Cleveland
  • William Burnham Woods – 1880 – nominated by Rutherford B. Hayes, AFTER the election of James Garfield; Hayes was a true “lame duck” who had not run for re-election
  • Philip Pendleton Barbour – 1836 – nominated by Andrew Jackson
  • Roger Taney – 1836 – nominated by Andrew Jackson
  • William Johnson – 1804 – nominated by Thomas Jefferson
  • John Marshall – 1800 – nominated by John Adams, AFTER the election of Thomas Jefferson; Adams was a true “lame duck” who had lost his re-election bid
  • Oliver Ellsworth – 1796 – nominated by George Washington
  • Samuel Chase – 1796 – nominated by George Washington

So don’t buy into the GOP’s claim that waiting for the next President to nominate someone when a vacancy occurs during an election year is somehow a “tradition”. This is a LIE. In fact, there has NEVER been a case where a vacancy “waited” to be filled until the next President took office. The closest we have EVER come to this was in 1968, when President Johnson nominated Associate Justice Abe Fortas to replace Chief Justice Earl Warren, who had announced his retirement in June of that year. Fortas’s nomination was successfully filibustered, and Fortas asked that his name be withdrawn from consideration as Chief Justice (he continued serving on the Court as an Associate Justice until he resigned in disgrace in 1970 following revelations of financial improprieties). The Chief Justice’s seat was ultimately filled by the next President, Richard Nixon, who nominated Warren Burger, but my point stands – President Johnson tried to fill the vacancy, rather than “waiting for the next President”.

The history is clear:  Senator McConnell disgraces his office, the Senate, and the GOP by taking this course. He should back down and agree that President Obama is still just that - President of the United States - and that the Senate has a duty to address any President's nomination for the Supreme Court in a timely manner.




REGARDING THE SUPREME COURT VACANCY
February 16, 2016

Well, perhaps the “epic battle” to replace Justice Antonin Scalia has not yet begun, but battle lines are definitely being drawn. Just about an hour after Justice Scalia’s death had been confirmed – at a time when many prominent political figures (such as Bernie Sanders and Senator Chuck Schumer) were sending condolences to Scalia’s family – Senate Majority Leader Mitch McConnell (R-KY) issued a statement saying, “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.” Senator Chuck Grassley (R-IA), the Chairman of the Senate Judiciary Committee (which would hold confirmation hearings before the full Senate could vote on any nominee), fell in line behind the Majority Leader, stating that, “"This president, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda. It only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”

It is important to understand something here. Article II, Section 2 of the Constitution, which dictates what happens when there is a vacancy on the Supreme Court, reads in part “he [the President] shall nominate…by and with the advice and consent of the Senate…judges of the Supreme Court…”
There is a vacancy on the Supreme Court. The President is Barack Obama, who received 65,899,660 votes for his re-election in 2012 (more than any other candidate in history besides himself; he received more than 69 million votes in 2008), becoming one of only seven American Presidents (and the first since Ronald Reagan) to win a majority of the American popular vote twice – at least since 1824, when the popular vote was first recorded. As they say, elections have consequences. Ask yourself this question: would the Republicans be taking this position if Mitt Romney had won the election? Somehow I doubt it. President Obama was re-elected to a term of four years, which does not expire until noon on January 20th, 2017 – not to a term of 3 years and 17 days (the point at which Justice Scalia died) – so he is in fact still the President. Under the Constitution, President Obama has the undeniable authority – I would even say the duty – to nominate a replacement for Justice Scalia.

But does the Senate have to take up the nomination? This is an open question. Traditionally, the Senate does take up the nomination promptly – since 1975, Supreme Court nominees have waited an average of just 67 days from the time of their nomination for a confirmation vote. The Senate voted to confirm Anthony Kennedy to the Supreme Court on February 3, 1988 – just about the same point in President Ronald Reagan’s second term as President Obama is now. In fact, no Senate Majority Leader has ever issued a statement saying that the Senate would automatically refuse to even consider any nominee the President chose to put forward.

But the question is not what traditionally happens, or what precedents have been set in the past. The question is whether the Senate is required to take up the nomination. The answer is clear – there is nothing in the Constitution, or in the Senate rules, that places any sort of time frame on when the Senate has to consider a given nomination; in fact there is nothing that requires the Senate to take up a given nomination at all.
So President Obama has the power to nominate someone, but the Senate does not have to fulfill its “advice and consent” role within any given time frame.

So now what?

This is where politics will come in. The Democrats seem to be coalescing around a two-pronged argument: the unprecedented nature of McConnell's position and the notion that the Senate cannot abdicate its Constitutional duties for partisan political reasons, while the Republicans have quickly pointed to Senator Chuck Schumer’s July 2007 statement that the Senate should not accept any nominations for the Supreme Court from then-President George W. Bush (who had about a year and a half left of his term) “except in extraordinary circumstances”, adding, “The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.”
How this plays out will depend in large part on who President Obama decides to nominate. If he decides to throw down a gauntlet and nominate someone who would have little chance in the Senate in the best of times (perhaps due to an all-too-liberal record), the Republicans will simply refuse to take up the nomination and will probably not suffer for it. On the other hand, if President Obama were to nominate someone with a more moderate record, someone who has some Republican bonafides (say, perhaps, they have clerked for a conservative Supreme Court Justice), someone who has sailed through a Senate confirmation in the recent past, someone who has the support of past Republican judges and, for the coup de grace, someone who fits a demographic that has never been represented on the Supreme Court before, things could get very awkward for the Republicans.

I think I have found just the person President Obama should nominate.

His name is Sri Srinivasan, and he is 48 years old. He graduated from Stanford University (with a bachelor’s degree in 1989, followed by simultaneous Juris Doctorate and MBA degrees in 1995), and then clerked for Supreme Court Justice Sandra Day O’Connor. He was nominated to a seat on the Court of Appeals for the District of Columbia (the same launching ground which produced Justice Scalia, along with three current Justices and many past Justices) by President Obama in 2013, and was confirmed by the Senate by a unanimous 97-0 vote just under three years ago (among those who voted in his favor were Senators Marco Rubio and Ted Cruz). He has served on the Court of Appeals longer than either Chief Justice John Roberts or Justice Clarence Thomas, and has produced a fairly moderate record.

He also has the support of Deanell Reece Tacha, appointed by President Reagan to the U.S. Court of Appeals for the Tenth Circuit where she served as a circuit judge from 1986-2011 and as Chief Judge from January 2001 through 2007, and currently the Dean of Pepperdine Law School. Tacha says of Srinivasan: “I know very little about the politics of the nomination, but I know that Sri would be a truly outstanding nominee in all respects. He is exceptionally well qualified; an outstanding jurist with a powerful intellect and deep respect for the law. I hope he will be given serious consideration.”
Oh – and Srinivasan was born in India. His family emigrated here in the late 1960’s (when Sri was just a toddler), and settled in Lawrence Kansas. He would be the first Indian-American to serve on the Supreme Court.

Given that Srinivasan was unanimously confirmed by the Senate less than three years ago, clerked for Ronald Reagan’s first Supreme Court appointee (Justice O’Connor), has a moderate record, has the support of someone like Deanell Reece Tacha, and is Indian-American to boot, it would be politically difficult for the Republicans to take up such an ardent opposition to him. If the Democrats were to play this one right (a dubious possibility at best), they could use Republican intransigence against such a reasonable nominee as a sledge hammer in both the race for the White House and in the race for the Senate.

Which brings me to another point. Currently the Senate is made up of 54 Republicans and 46 Democrats (including Independent Senator Angus King of Maine, who caucuses with the Democrats). This year’s race for the Senate is going to be tight; the Democrats need a net gain of just 5 seats (4 if they win the White House, because the Vice President presides over the Senate and casts a vote in case of a tie) to take back the Senate majority. What if the Democrats win the White House (a strong possibility, given the electoral math), AND take back the Senate majority (also a strong possibility, given that 24 Republican seats are up for election this year, compared to just 10 Democratic seats)? I think the Republicans are taking a serious gamble here, because if they insist on waiting, and the Democrats take the White House and the Senate majority, they may end up stuck with a much more liberal nominee than whoever President Obama decides to nominate.

Just sayin…





THE DEATH OF ANTONIN SCALIA
February 13, 2016

The unexpected death of Supreme Court Justice Antonin Scalia (announced today) will bring about seismic shifts in American jurisprudence - and an epic battle over his replacement - but all that can wait. Justice Scalia served this country on the high Court for 30 years (and on the Court of Appeals before that...), and should be remembered as a dedicated American who fought for how he believed the Constitution should be interpreted. He never backed down from a fight (especially with his colleagues), and was considered "feisty" and "irascible", but whether you revered or reviled him, now is a time to respect his memory and to be grateful for his service to our country.