Home / General / What are the odds of a SCOTUS vacancy by November 2015 and November 2016?

What are the odds of a SCOTUS vacancy by November 2015 and November 2016?

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Last spring, Jon Chait pointed out that if the Senate flipped to the GOP in November, this would have no significant short-term legislative consequences (with the House under GOP control no major legislation was going to be passed during the remainder of the Obama presidency in any event), but that such a flip would have profound consequences for presidential appointments in general, for potential SCOTUS nominations in particular, and for nominations to replace a right-wing justice in even more particularity.

Given the gradual breakdown of informal political norms regarding presidential appointments, and especially SCOTUS appointments, it’s now arguably become game theory 101 that no GOP-controlled Senate is going to allow Obama to appoint a SCOTUS justice at any point during the last two years of his presidency, and this is especially true for an appointment that would flip the SCOTUS, by replacing anyone other than Ginsberg, Breyer, Sotomayor, or Kagan:

It may seem implausible that Republicans would simply refuse to allow Obama to appoint any justice to such a vacancy. That is only because things that haven’t happened before are hard to imagine. But such a confrontation is not only a logical outcome but the most logical outcome. Voting to flip the Supreme Court would be, if not a political death warrant for a Republican Senator, then certainly taking one’s political life into one’s own hands. Politicians do not like political death warrants — certainly not for the benefit of the opposing party’s agenda.

The modern pattern in American politics is that tactics that are legally available, but never used for reasons of custom, eventually become used. The modern pattern is also that the Republican Party, which is the most ideologically cohesive and disciplined party, leads the way. McConnell did not create this pattern, but he is an important innovator.

McConnell was among the first political leaders to grasp that Republicans had everything to gain and nothing to lose from withholding support for every major element of Obama’s agenda — that the old Beltway folklore, which warned the opposition party that voters would punish them if they appeared obstructionist, had no basis in reality. Most people pay no attention to the details of policy, and form rough judgments on the basis of how much noise and controversy rises out of Washington. “It was absolutely critical that everybody be together because if the proponents of the bill were able to say it was bipartisan, it tended to convey to the public that this is O.K., they must have figured it out,” he confessed. Political scientists understood this reality perfectly well, but it was utterly strange to the old-line purveyors of Washington conventional wisdom. McConnell moneyballed the Senate.

It stands to reason that if and when new powers are laid at his disposal, McConnell will once again deploy them creatively. A potential Supreme Court crisis, in which the Senate simply refuses to let the president fill a vacancy on any remotely normal terms, is one possibility. Others may be brewing at this moment deep within McConnell’s extensive imagination.

What are the odds that such a vacancy will occur? This of course has to be a speculative calculation, but it’s far from completely speculative. We can begin with the general actuarial probabilities that one of the SCOTUS justices will die within the next year, or the next two years (The distinction is important because the practical consequences of, say, a potential 20-month vacancy on the SCOTUS are very different from those of a three or six-month vacancy).

While it’s true that population-wide probabilities are of limited value in regard to particular individuals, it’s also true that the various reasons one can come up with as to why they aren’t going to be accurate in a particular case tend to cancel each other out. For example, the SCOTUS justices are in the American upper class, which means that all other things being equal their life expectancies are better than those of Americans in general, but on the other hand they are doing high-stress work, especially in comparison to most geriatric individuals etc. etc.

Anyway . . .

Approximate probability of at least one SCOTUS justice dying by November 2015: 22.5%

Approximate probability of at least one SCOTUS justice dying by November 2016: 36.8%

Approximate probability of at least one conservative SCOTUS justice dying by November 2015: 14%

Approximate probability of at least one conservative SCOTUS justice dying by November 2016: 26.2%

Of course to the extent these probabilities are accurate, they establish a floor for possible SCOTUS vacancies. They must be enhanced by the odds of a justice retiring for health or other reasons, which are naturally far more speculative. If we assume the combined odds of all such events are equivalent to even half of the mortality risk currently faced by members of the American Politburo Supreme Court, then the odds of a SCOTUS vacancy during the remainder of Obama’s presidency rise to just about 50/50, and the odds of a swing SCOTUS vacancy arising with more than a year remaining in Obama’s term are better than one in five.

Would the latter circumstance lead to the SCOTUS having only eight justices (or less) for more than a year? I agree with Jon that the answer to that question is almost certainly yes. Whether that would create some sort of political or constitutional crisis is another question, regarding which I don’t have an opinion at the moment.

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  • random

    Turn the 2016 election into a referendum on Citizens United, Hobby Lobby, and voting rights?

    Knock yourself out Mitch.

    Say, could you try to impeach the president over immigration while you’re at it?

    • AlanInSF

      Only good news coming out of the election is that the Democratic Party has been relegated, and will be replaced in the next election cycle by AFC Bournemouth.

      • Captain Haddock

        I’m in the mood for Millwall.

        • AlanInSF

          Given Millwall’s famous “No one likes us, we don’t care” chant, that wouldn’t be much of a change.

      • postmodulator

        While I’m aware that’s a joke, I can hear the heads rolling at the Ohio Democratic Party from here.

        • AlanInSF

          Rolling on pikes, if Loomis has anything to do with it.

  • mpowell

    I have to disagree with your actuarial assessment. I think being a member of SCOTUS is unlikely to reduce life expectancy due to ‘stress’. There is simply no reason to assume some magic balancing of factors here. We are talking about intellectually active members of the upper class with tremendous financial security, great healthcare, and a workload pretty close to optional. There is no way the members do not have better life expectancy than the average American. Also, you appear to be estimating a 13% probability that someone resigns in the next 2 years under a Republican Senate. This probability to me seems more realistically closer to zero. None of those justices, Republican or Democratic, are going to want their retirement to raise an epic shitstorm which it so clearly would.

    But that still leaves a very reasonable chance that it could happen.

    • Gregor Sansa

      Mpowell is right. Studies consistently show that “stress” is mostly synonymous with being lower class. Sure, there’s overwork, but that’s a different thing, and I don’t think supreme court justices are pulling 80 hour work-weeks. They are at the pinnacle of power and respectability, and that is good for their health. I dearly hope that one of the bad guys will be gone ASAP but as a bet I’d eagerly give 3:1 odds that they’ll all last until the next president.

      • postmodulator

        I’d liken them to professors emeritus, in terms of workload and societal standing, and professors emeritus live forever.

        • Anon21

          No, they definitely work more than professor emerituses when they’re working. (I.e. not during their summer break.) I agree with Gregor that they’re not pulling 80-hour weeks, but 60-hour weeks, particularly around the end of terms, wouldn’t be unreasonable. Keep in mind that a) these are generally very intense, driven people, who reached the top of their profession in part because they have an innate drive to work harder than their colleagues; b) they do a lot of writing, a fair amount of which the public never sees (so don’t assume that they’re only responsible for their published output).

          • wengler

            They have a whole coven of clerks 50 years younger than them working insane hours in the pursuit of their own careers. If you are a SCOTUS judge you work as much or as little as you want to.

            • Anon21

              And they want to work a lot. Some of them, maybe all of them, write all of their own first drafts. You are right that they could totally slack off and put in like 20 hours a week and earn their colleagues’ scorn if they so chose, but when assessing their health, the question is not what they legally can do, but what they will actually do. What they will actually do is: work pretty hard.

      • rea

        RBG, I think, has as much as said that she is staying on the Court because the work is what is keeping her alive.

    • joe from Lowell

      Why do we need to guess at this?

      Can’t we just look at the life-expectancy-at-birth of people born in the same year as each Supreme Court Justice in American history (corrected for age and race) and then look at the death age of each Justice?

      “Do Supreme Court Justices live longer or shorter lives than the median American?” seems like a question that we can answer with numbers and stuff.

      • Gregor Sansa

        I don’t have the data on me, but I’m pretty sure I’ve seen that question answered before, and the answer was yes.

      • Manny Kant

        life-expectancy-at-birth seems like a poor control, since obviously no Supreme Court justices are going to be dying in infancy. Wouldn’t life-expectancy-at-35, or some such, be more appropriate?

      • efgoldman

        “Do Supreme Court Justices live longer or shorter lives than the median American?” seems like a question that we can answer with numbers and stuff.

        Except it doesn’t apply to the Five Savonarolas, because everyone knows that numbers and stuff have a liberal bias.
        Besides, those five guys belong to the same HMO coven as Darth Cheney.

    • Anon21

      Also, you appear to be estimating a 13% probability that someone resigns in the next 2 years under a Republican Senate. This probability to me seems more realistically closer to zero.

      You have to account for the possibility of a disabling medical event such as a stroke that leaves the Justice unable to discharge his or her duties. That’s a non-zero possibility in this age cohort.

      • mpowell

        Yeah, I considered this. Many of those events lead to death within a very short period of time so those would fall into the normal mortality rates more or less. For other kinds of events, I don’t know the probabilities. I recognize it’s non-zero of course.

  • postmodulator

    I wonder if we could get better actuarial numbers if we account for the Supreme Court’s actual health history. (Ginsburg is a cancer survivor, Sotomayor is a diabetic, and Scalia, as I never tire of pointing out, can’t put down the Marlboro Lights.)

    • witlesschum

      I could use a pack or three today. I wouldn’t have quit smoking if I thought the GOP was going to be running the senate again. I never smoked Marlboros, though. Camels or P-funks, please.

    • Gregor Sansa

      There are not many cases where it’s OK to hope somebody gets cancer. Even if they’re an asshole, they could still redeem themselves; and even if they are a mass-murderer, usually by the time they’re old enough to be worrying about cancer their supervillain days are over.

      Scalia is an exception. He bears a significant share of the blame for over a million deaths, and he’s got every chance of adding to that total. So yes, I hope he chokes on those Marlboros.

      • Snarki, child of Loki

        Is there any reason to believe that Scalia doesn’t already have a brain cancer?

        • Denverite

          Yes. The indicia of brain cancer that he is displaying date back decades, and he be long dead if that’s what was causing them.

      • UserGoogol

        I hope that Scalia leaves office. I would prefer that he leave office for as pleasant a reason as possible. If he left office due to cancer, well I wouldn’t be unhappy per se, but that particular cause would only add to the world’s suffering.

        …although let’s be honest. If Scalia leaves office and his replacement is picked by a Republican, they won’t be much better.

  • Malaclypse

    this would have no significant short-term legislative consequences

    Mayhew over at Balloon Juice speculates that both the employer mandate part of the ACA and the medical device tax will die, and I’d have to say I agree. And I’d call the employer mandate significant.

    • mds

      So … keep a bunch of the parts that are turning out to be popular, and jettison one of the parts that helps pay for it. Then shriek about how Obamacare is increasing the deficit. Yeah, that sounds like the party of fiscal responsibility, all right. On the other hand, they need to be seen to pass total repeal first, only to be stopped by Obama’s lawlessly dictatorial veto. So these particular items will presumably come the next time the GOP threaten to torpedo the Full Faith and Credit of the United States.

      • joe from Lowell

        My state’s delegation, even the good liberals, have the medical device tax in their gun sights.

        Quick, guess which state sells a lot of medical devices?

        • timb

          All Hoosier legislators are ready to jettison it due to the existence of two manufacturers in the State.

          And people say our politicians are corrupt

        • mds

          Quick, guess which state sells a lot of medical devices?

          Minnesota?

          • Joe Bob the III

            …and Massachusetts.

    • Murc

      Mayhew seems to think that would be actual good policy, though, which the Republicans are opposed to in general. Although I confess to being unclear as to what the employer mandate actually is and does.

      • Malaclypse

        Is the idea that employers need to offer at least Minimal Value insurance that meets affordability standards. As you well know, those policies suck, but offering them makes people ineligible for subsidies. If Medicaid expansion were in all 50 states, I’d be all for killing the mandate. Not sure my opinion given that some states have shitty state governments.

        • Murc

          Oh! The thing that’s screwing me over.

          I take it that killing the mandate would mean that anyone at all can decline employer coverage, grab subsidies based on income level alone, and hit the exchanges? Because that sounds awesome.

          (The other way would be killing it means they no longer have to offer minimum value plans, but that sounds less awesome and something that neither you nor Mayhew, who knows his shit, would be in favor of.)

          • royko

            I don’t think so.

            The employer mandate just makes employers (with more than 50 employees) offer acceptable coverage or else pay a penalty. I don’t think you’re eligible for subsidies, with or without the mandate, as long as your employer offers acceptable coverage, regardless of whether you decline.

            (Unless you think your employer will drop its insurance at the prospect of no future mandate.)

            • Denverite

              Your employer has to offer ACA-compliant coverage that is less than a certain percentage of your income. If the offered coverage is more than that limit, you are eligible for whatever subsidies you’d otherwise be eligible for on the exchanges. For everyone that goes on the exchange and gets the subsidies, the employer has to pay a shared financial responsibility penalty.

              • Malaclypse

                Murc’s employer found a particularly evil work-around on the affordability question.

                • Denverite

                  I remember — they were assessing a non-salary penalty to make it look like his premium share was less than the cut-off, when it effectively was way over it.

                  I still think that the IRS would be mighty interested in that arrangement. (It is the agency in charge of collecting the penalty.)

                • Malaclypse

                  I ran it by 2 consultants we work with to implement the ACA. One hasn’t answered yet, one said it would be legal.

                • Denverite

                  It’s not the scheme that would be illegal. It’s filing taxes (effectively) saying that you offered your employee coverage with a premium share below the limit and therefore don’t owe any penalties.

                  (You may have asked this specifically, and IANATL.)

                • Lee Rudolph

                  IANATL

                  I was told that this blog was no longer going to require sacrifices to Mesoamerican gods.

                • Malaclypse

                  I concentrated on the question of if Murc would get a subsidy.

                • Murc

                  And allow me to once again publicly thank you for going above and beyond to help out a casual acquaintance you primarily know as an Internet Loudmouth, Mal. :)

                  (I’m currently working my way to contact with an insurance navigator here in NYS, but this is a huge time of year for then. I may try and run down an actual insurance regulator who seems public-spirited and see what they have to say about this.)

            • Malaclypse

              (Unless you think your employer will drop its insurance at the prospect of no future mandate.)

              I think almost every employer offering the bare minimum will drop it once the mandate goes away.

              • royko

                Since the mandate hasn’t gone into effect yet, I assumed any employer that didn’t want to offer insurance wasn’t.

                • Malaclypse

                  Depends. Keep in mind that renewals only happen once a year, and you need to have something in place by Jan 1. Our broker told us that a lot of companies who previously had good insurance, but only offered it to, say, salaried folks, are adding a shitty policy to offer to the hourlies. Unless renewal is Jan 1, those policies have been implemented throughout this year.

          • Malaclypse

            I take it that killing the mandate would mean that anyone at all can decline employer coverage, grab subsidies based on income level alone, and hit the exchanges?

            As noted, only if they drop coverage. I simply assumed yours would.

    • postmodulator

      I was more interested in Mistermix’s prediction that the filibuster was doomed. On the one hand, it’s not as though the GOP gives two shits about consistency; but on the other hand, dumping the filibuster doesn’t actually gain them anything absent veto-proof majorities.

      • NonyNony

        If you have a veto-proof majority by definition you aren’t going to have a filibuster because you’ll have at least 60 votes available to break it.

        Unless you think that there are people who would got along with the filibuster but would also vote to override the president’s veto, I guess. Which would be a weird political calculus these days and I can’t think of how it could happen.

        • postmodulator

          After a minute to think about it, I think the GOP will see value in dumping the filibuster so they can force Obama to veto stuff with poison pills attached. They might also think they can bully Obama into being scared to veto anything.

          • random

            There will be people in the GOP pointing out that the Dems can realistically take the Senate in 2016 and HRC can win the White House.

            Too many of them know that it could easily blow up in their faces.

            • Denverite

              “The filibuster is a good idea in general, but these are exceptional times. The American people gave the Republicans a specific mandate to fix the mistakes of this president and repeal Obamacare/enforce immigration laws/stop ISIS/euthanize 10% of the poor people. It wouldn’t make any sense to thwart the will of the people with a procedural device. Therefore, the ability to block legislation with a filibuster is hereby suspended until December 2016, at which point the will of the people will be observed and this extraordinary measure will no longer be necessary.”

              • humanoid.panda

                That’s not how Senate rules work. In essence, a given Senate can’t bound future Senates to its current rules, so a 2016 Democratic majority can simply extend that suspension if it wishes to.

          • NonyNony

            Eh – they get as much mileage out of forcing the Dems to filibuster the same legislation with the poison pill attached.

            More, actually, because those Dems have seats to defend while Obama won’t be running again.

            ETA – so the way I see it going for the next two years is that the Dems play “nice” – they allow every vote that the GOP want to hold so that it passes with less than 2/3 majority and then let Obama be the guy that vetoes it and tells the GOP to grow up.

            • postmodulator

              I’m not sure that’s true. If the past few years have taught me one thing, it’s that a large number of American voters don’t even really realize that we have a legislature.

              The Democrats have tried pretty hard to make the GOP pay for unpopular votes it’s cast. Never happens. Associating candidates with an unpopular president, however, seems to work great.

          • UserGoogol

            I think it’s fairly likely that Congress will pass legislation without having any plan at all to threaten Obama to sign it. Just to let them say, “hey, we’re passing legislation, Obama’s the one causing all the deadlock.”

    • witlesschum

      He doesn’t explain why Obama doesn’t veto those or why enough Dems go along to override. What am I missing there?

      • postmodulator

        I think he assumes that Obama and Democratic legislators cringe and assume they should compromise, since that’s what the Amurrican People Want and Compromise Made This Nation Great. As someone who was alive between 1994 and 2000, I’m not sure he’s wrong.

      • mds

        What am I missing there?

        The hostage-taking part. It won’t be a clean bill to repeal those items; they will be attached to some sort of “must pass” legislation like raising the debt ceiling.

        • Gregor Sansa

          Platinum!

          Seriously… if Obama can’t find a way to call their bluff, he deserves what he gets.

          (Though of course one way to call their bluff would be to accept the end of the employer mandate. After all, right now, a deficit is a good thing macroeconomically, and politically he could blame it on them.)

          • postmodulator

            Seriously… if Obama can’t find a way to call their bluff, he deserves what he gets.

            What the hell does that even mean? Obama gets to retire and travel the world giving speeches, maybe be president of a university somewhere. What do the rest of us deserve?

          • mds

            Seriously… if Obama can’t find a way to call their bluff, he deserves what he gets.

            As the contingent who appear to be bluffing gets smaller and smaller, I find this line of thought less appetizing.

            • Gregor Sansa

              They don’t think they’re bluffing. But honestly believing that jack high is a winning hand isn’t going to do them much good.

              If the president doesn’t want to put up with shutdown antics, he has the cards. There’s the platinum option, the constitutional option (with bonus impeachment battle!), the option of actually going through with the shutdown, and the option of letting them strip the employer mandate. Some of those are better than others for the country, but every single one of them is a losing game for the Republicans. So yes, they’d be bluffing, whether they knew it or not.

              • Gregor Sansa

                In other words: the only way Obama could lose this fight is self-inflicted. If he says “Oh, please don’t repeal Obamacare; as a compromise, I’ll preemptively try to raise the Medicare age” or some stupid shit like that, yes, he’d lose. And so would we. But while we wouldn’t deserve that loss, he very much would.

                • humanoid.panda

                  We also have to keep in mind that he played the last shutdown/debt ceiling hand rather deftly.

                  If only if that success was not followed by the Healhcare.gov debacle, the way he broke that thing would be remembered as the mother of all masterful political ploys.

      • Malaclypse

        In all honesty, reasonable people can think scrapping each is good policy.

    • Denverite

      Wow, great link. His point that the GOP seems to have paid absolutely, positively no price for refusing Medicaid expansion (despite the fact that it probably is costing hospitals and even the state itself tons of money, and, oh, killing a bunch of people) is depressing but astute.

      • How, exactly, does the employer mandate get repealed?

        • Denverite

          What mds said above. Congress attaches a full repeal of the ACA to some must-pass bill, Obama vetoes or even just threatens veto, and they compromise but cutting the unpopular parts of the ACA (which also happen to be the ones that balance the books, giving the GOP the ability to run on “Obamacare is costing billions of dollars [because we took out the stuff that pays for it]” in 2016).

          • Manju

            must-pass bill

            Besides raising the debt ceiling, what is a must-past bill?

            • Murc

              The yearly appropriations omnibus.

              • wengler

                Which has been passed in how many years of the past 8?

          • humanoid.panda

            The thing is, no one gives a crap about deficits. The deficit in 2010 was monumental. Currently, it is shrinking. No one gave a damn then and no one gives a damn now, except in a general sense of deficits being proxy for bad economic times.

  • Murc

    Would the latter circumstance lead to the SCOTUS having only eight justices (or less) for more than a year? I agree with Jon that the answer to that question is almost certainly yes. Whether that would create some sort of political or constitutional crisis is another question, regarding which I don’t have an opinion at the moment.

    I do! (I have so many opinions.)

    As I understand it, having only eight Supremes wouldn’t provoke any kind of constitutional crisis at all. The number of Supreme Court justices isn’t fixed by the Constitution, but rather by statute, and there are, as I understand it, already a fair number of cases only heard by eight when one justice or another recuses themselves.

    If I recall correctly, the rule is “tie goes to the lower court,” that is, if the Supreme Court goes 4-4, the ruling of the lower court that got to them is allowed to stand.

    Now, this might prove politically problematic, as it is open to all sorts of shenanigans. If the Notorious RBG dies aforetime, for example, I can see the 5th Circuit issuing a bunch of batshit rulings, sending them to the Supremes, and relying on 4-4 splits to let them stand. This would be contrary to established norms (typically, lower courts go “sorry, precedent on this is clear, but that precedent is 40 years old and the makeup of the Supremes is different now, try your luck with them”) but those “norms” don’t have the force of law behind them.

    But constitutionally, we have systems in place to deal with having an even number of justices.

  • Gary K

    Just to inform the discussion further, here are the ages of the oldest justices on the current court.

    116 years 244 days
    116 years 123 days
    115 years 165 days
    115 years 121 days
    115 years 103 days
    114 years 340 days

    • Gregor Sansa

      Heh.

  • mds

    Would the latter circumstance lead to the SCOTUS having only eight justices (or less) for more than a year? I agree with Jon that the answer to that question is almost certainly yes.

    Well, in that case, I fail to see how Scalia departing the Court would be a bad thing. There have been plenty of awful 5-4 decisions.

    Whether that would create some sort of political or constitutional crisis is another question, regarding which I don’t have an opinion at the moment.

    As Murc has already noted while I was typing this, there would be no constitutional crisis, except possibly a horseshit one where Obama declining to fill a vacant seat with Janice Rogers Brown or Edith Jones would be mouth-frothingly declared as a direct assault on the “advise-and-consent” clause, or something. But he’s already a lawless, Constitution-flouting tyrant, so what’s the difference? There might well be a political crisis, but I’m not sure who would take the hit. Obama could always claim he doesn’t want to “pack” the Court, and do they really need that many justices for their light work load?

    • Richard Gadsden

      Obama proposes someone. The Republicans threaten to vote them down. The Democrats filibuster. The Republicans abolish the filibuster on SCOTUS nominations so they can vote the nominee down. Obama proposes the next name on his list. The Republicans vote them down.

      Wash, rinse, repeat until one of the following: the Republican Senate’s insanity level drops below 90% and there’s a majority for the nominee, Obama folds and appoints a wingnut, or Election Day 2016 arrives.

      Either way, the filibuster on SCOTUS nominations was scrapped by the Republicans and the Democrats don’t get the blame for “breaking a constitutional norm”. IOKIYAR, so the GOP doesn’t get blamed either.

  • Denverite

    I’m not 100% sure that Paul’s premise is correct. I could definitely see a scenario where in late 2015, Clinton (or whomever the Dem candidate is) looks unbeatable, the Dems look decent to retake the Senate, and Ginsburg or Breyer passes away or steps down for health reasons. At that point, the GOP might figure that it’s better to confirm a SCOTUS judge that they can have some input on (or even a potential veto over), rather than risk giving President Clinton and her Democratic senate carte blanche in 2017.

    • howard

      there is no reason to believe that rational voices are welcome in the gop, and from the gop’s perspective, behaving irrationally has hardly hurt.

      • timb

        Why we insist on calling their behavior “irrational” is a mystery. Their policies are wrong, McConnell’s obstructionism hurt the country, and they often sound hypocritical, BUT, they have rewarded at every turn by treating the American people with contempt. They are acting rationally. It’s the incentive structure that is irrational (much like the late Roman Republic).

        About the only irrational thing they have done is the government shutdown, but Cruz was right that no one would remember it a year later AND it greatly enhanced Cruz’s image amongst the troglodytes who will fund and be the ground troops for his doomed presidential run. For the GOP that was a loser and irrational, but for Cruz….

        Meanwhile, the wave election of 2010 seems like the worst thing to happen to the country since 9/11, since it handed Republicans the power to re-district, several governorships, and tons of state legislatures.

        • timb

          Should read
          “BUT, they have been rewarded at every turn..”

          If only we have an edit button.

          PS I know we do. Leave me alone

        • howard

          actually, fwiw, i don’t disagree with you: i was referencing the irrationality of gop beliefs, not the irrationality of gop response to politics in these united states, which i agree is quite rational.

    • witlesschum

      I think you’re wrong on that. If I’m an individual Republican senator, I’m probably rational to be more worried about being blamed for collaborating with the Kenyan usurper to put an abortionistgaymarryer11!!!!!!!1111 on the court by my primary challenger and/or the screaming ant-sex league than I am about whatever a justice appointed Clinton might actually do.

  • bobbo1

    This morning Chait is saying that based on yesterday’s drubbing the Dems’ chances of taking back the Senate in 2016 are not good. Assuming he’s not talking out of his ass (big assumption, I know) that would presumably mean 6 years of no confirmations, not 2.

    • Denverite

      I’d put them a bit better than “not good.” The Dems will need four seats. You’ve got Johnson in WI. No way he survives a presidential electorate. There’s Kirk in IL, who may not even run for reelection. He’d have a slightly better chance than Johnson, but only just. If there’s a strong Democratic electorate, Toomey in PA is gone.

      After that, you’re probably going to have to pick up a red state seat. You’d like Ohio, but Portman is soooooo popular. Same thing with Grassley in Iowa. Ayotte in NH might be a candidate. Ditto Burr in NC.

      • AlanInSF

        Hey, with Mark Penn running the national party, how can we go wrong?

      • Manny Kant

        Grassley may retire, no?

        • mds

          Well, the last time he spoke on the subject, he was planning to run again. But that could change, since he’s already over 80.

      • Murc

        The Dems will need four seats.

        Given the prevalence of backstabbers in our party, we need more than that. If the Senate goes 50/50 I see Joe Manchin being offered thirty pieces of silver. Even discounting overt betrayal, there are at least two or three Dems who can be counted on to kneecap the rest of the caucus. You need a margin.

    • howard

      i’m not sure why today is any different than the first wednesday after the first tuesday of november, 2010.

      • Denverite

        Because the Dems held the Senate in 2010?

        • howard

          fair enough but i was looking at it from the standpoint of number of seats lost.

    • postmodulator

      Well, let’s look at it frankly. We underperformed. Weak candidates, terrible turnout, etc…but Brownback won despite being a track record of failure. Fitzgerald imploded so badly that Kasich didn’t even really have to campaign, and Kasich was eminently beatable. Scott won despite the single most embarrassing debate gaffe since George HW Bush checked his watch onstage. Walker’s running a blue state and taking loud positions to the right of his electorate and he won by a large margin. Coakley didn’t have the sense to be too ashamed to show her face in public…it goes on and on.

      Is this the fruits of voter suppression? (I have heard on social media, anecdotally, of three successfully suppressed liberal voters in Cleveland, and one in Tucson.) Are the voting machines shaving the margins behind the scenes? (There was a documented case in North Carolina of a machine that switched votes to the GOP, a la the Simpsons.)

      Am I just paranoid? What the hell do we have to do to get some points on the board?

      • howard

        well, the first thing is to convince the under 30s that voting in congressional elections matters a whole lot: that dropoff in voting turnout by the under 30s is depressing as all get out but it’s the single most important thing to correct.

        • postmodulator

          Convince them how? The Republicans are enormously unpopular in that group, and Democrats aren’t able to pass any legislation that’d shore up their support. Restart Occupy Wall Street and focus it like a laser on voting turnout?

          • LeeEsq

            Good question. I voted in every election since I turned eighteen. Why most people under thirty don’t vote could be for a myriad of reasons. For the politically active, the twenties are a time of passion and voting for a centrist and liberal party might seem like a sell out compared to an actual leftist party. Others might be apathetic to politics because they can’t comprehend how it effects them at that age. Others could just be too busy.

            • jim, some guy in iowa

              i was always interested so i think i’ve voted in every election since 1986 except 1990. but i think a lot of people my age (around here anyway) didn’t develop that interest until later in life and they have skin in the game so to speak. by that point, somewhat like the union membership Erik talks about sometimes, they were more interested in protecting what they see as their interests than advancing some kind of agenda

          • Turn your party to actually dealing with the issues of young people.

            • mds

              Yeah, one of the parties should really try to stake out a stance on college debt.

              • postmodulator

                What stance? “Student debt jubilee?” (I’d benefit enormously by that, personally.) Nothing else affects voters that have college debt already.

                • Joe Bob the III

                  Au contraire. I am still paying off student debt accumulated long, long ago in the late ’90s at the relatively handsome interest rate of 6.25%.

                  If I could refinance that debt I could save about $50/month for every percentage point reduction in the interest rate.

                  Also, the tax deduction for student loan interest is capped at something like $2,500 and there is an income cutoff for the deduction. Raising those limits could save me a few hundred dollars per year…which is better than nothing.

                  So there. Two more things Congress could do to help people who already have student debt.

            • timb

              Money. Politicians only care about money and kids doubt have any. Old people do, thus politicians care about old people

              • Fine, except that this election goes far to show that while that strategy works great for Republicans, it doesn’t for Democrats so they’d better figure out the alternative.

          • howard

            you know, if i knew the secret, i would be in politics, but i don’t.

            all i know is that under 30s vote more heavily in presidential elections than in mid-terms, so it’s not that under 30s don’t vote at all but beyond that, someone else has to come up with the solution….

            • postmodulator

              Or there isn’t a solution. Not all problems have a solution.

      • mds

        Is this the fruits of voter suppression?

        In North Carolina, I would say so, at least a little bit. But Wisconsin’s draconian Catch-22 voter ID setup was put on hold for this election. In that case I’d say it’s just the midterm effect at work, plus an admittedly disturbing polarization trend. I mean, once upon a time, in that long-forgotten year of 2004, Russ Feingold could handily outperform John Kerry thanks to crossover support. Come 2010, and Feingold was losing to an openly noxious boob while just barely outperforming Tom Barrett. By 2012, Tammy Baldwin was underperforming President Obama. I dunno if it’s Foxification at work, if it’s the fact that GOP candidates give their base the red meat they crave, while Democrats talk about “bridging the divide” and putting out position papers, or what.

    • Joe Bob the III

      Um yeah, I would say talking out the ass.

      The GOP has 24 Senate seats up in 2016. Dems have 10. The GOP will have to defend 7 seats in states that went for Obama in 2008/12. Dems will have to defend 0 seats in states that went GOP (I think all of those candidates lost yesterday…).

      Even though the GOP will be defending twice as many seats, most of those aren’t going to be seriously contested. Nonetheless, that is a lot more pickup opportunities for Democrats than for Republicans.

      I’m not sure how one quantifies ‘not good’ but if you can point to 7 plausible Dem pickups today and 0 for the GOP…I would characterize Dem’s chances of retaking the Senate in 2016 as better than 50/50 at least.

      • Richard Gadsden

        Would be really good if serious contests could be pointed at all the safe red states. Even if they’re only serious until June 2016 and fold like a house of cards afterwards, it should keep some of the GOP money at home.

    • Richard Gadsden

      Rectal-cranial inversion.

      I just looked at the map. Republicans are defending New Hampshire, Pennsylvania, North Carolina, Illinois, Ohio, Wisconsin, Indiana, Iowa, and Florida just to pick states that Obama has won in either 2008 or 2012.

      Wisconsin and Illinois should be near certs, and Pennsylvania can’t be that hard. You only need one more, and that’s a hell of a lot of coins that all have to come up heads for the GOP.

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