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Whole Woman’s Health Politburo Watching

[ 12 ] June 27, 2016 |


We haven’t done a lot of this for the Supreme Court term wrapping up tomorrow, so to honor Lyle Denniston leaving SCOTUSBLOG, here are the possible outcomes in the biggest remaining case in the ascending order of probability as I see it:

  • 4-4 one liner. A one sentence per curiam, like the Court issued last week in U.S. v. Texas, by an evenly divided Court allowing the Fifth Circuit opinion to stand. I think this is very unlikely, for two reasons. First, if this was the outcome the opinion probably would have already been issued. And, perhaps more importantly, I can’t see the liberal faction of the Court allowing the draconian abortion restrictions in Texas and Lousiana to stay in force without commentary.
  • 4-4 with opinions. Kennedy still can’t find any regulations that constitute an “undue burden” under the rather awful plurality opinion he helped write. At least one liberal justice — most likely RBG or Kagan — really lets him have it in a dissent. Kennedy either defends himself or hides under Alito’s robes. A little more likely than a silent deadlock — I don’t have much faith in Kennedy on abortion cases — but I think it’s more likely that he has been pushed too far this time.
  • 5-3 liberal victory. In a reprise of Fisher II from last week, Kennedy can’t stomach the bad faith with which contemporary Republicans have treated Casey, and provides a fifth vote to strike down most or all of the Texas statute. Kennedy’s opinion makes it very clear that the law offends the dignity of women seeking to obtain an abortion in Texas and makes what standard the Court should apply to abortion regulations going forward even less clear. Alito writes a faux-minimalist dissent arguing that the statute is consistent with Casey as Kennedy has previously interpreted it that is as least twice as long as Kennedy’s opinion. Thomas writes a short solo concurrence arguing that Roe needs to be nuked from orbit just to be sure.
  • 5-3 mixed bag. Kennedy finds some but not all of the key parts of the Texas statute unconstitutional. In this scenario, the liberal justices who have been content to let Kennedy speak for the Court if he votes correctly might write one or multiple concurrences/dissents underlying the stakes, plus you’d probably get Alito and Thomas opinions comparable to those above.

I’d say the last two are comparably likely. This doesn’t exhaust every single possibility, of course. Roberts might also write, and I suppose there’s some chance under scenario four that he could join Kennedy, although I doubt it. But I think these are the most likely ways it plays out.


PUMA II: Electric Boogaloo

[ 94 ] June 26, 2016 |


Another reason not to panic:

Donald Trump would like for Bernie Sanders supporters to ditch the Democratic Party and support him. There is very little evidence that they will do that, mind you, but it’s certainly possible that they might just stay home — which would help Trump.

Well, we have some bad news for the Trump campaign. Sanders supporters aren’t just rallying around Clinton; they’re doing it rather quickly. And it’s a big reason Clinton just extended her lead over Trump into the double digits, 51 percent to 39 percent.

A new Washington Post-ABC News poll shows that Sanders backers, who polls have shown were reluctant to jump over to Clinton and even flirted with supporting Trump, are coming home faster than we might have expected.

Last month, 20 percent of Sanders supporters said they would back Trump over Clinton in the general election. This month, that figure is down to 8 percent.

And the poll was conducted before, we would note, Sanders began saying last week that he would support Clinton over Trump in the general election. (Even as he’s not endorsing Clinton and is still technically a candidate, Sanders said his supporters would and should not vote for a “bigot” like Trump.)

Between this and the utter shambles of the Trump campaign — Democrats shouldn’t be complacent but they can be confident.

Was Cameron’s Referendum Decision Defensible? (SPOILER: No.)

[ 144 ] June 26, 2016 |

david-brentAbove: A More Competent British Leader Named “David”

In comments, Murc argues that Cameron’s catastrophic decision to call for a referendum was defensible:

We talk a lot on this blog how all politics is the work of coalitions and that political leaders often are, counter-intuitively, often forced to follow their electorates rather than the other way around. This comes up a lot during Clinton-related sturm und drang; people will say “They put the boot into the welfare state and ran on making poor people poorer and locking up black people” and they’re not wrong, but then others will come back with “the political atmosphere of the Democratic Party and the national mood as a whole at that time required them to make compromises with the no-more-handouts and tough-on-crime wings of their own party, to say nothing of the Republicans” and they aren’t wrong either.

Or, in a more British context… there’s been a lot of talk about how Cameron is going down as “the worst PM since Neville Chamberlain.” Chamberlain is reviled by history for his appeasement… but it is ignored that Chamberlain was representing the will of the vast majority of his party, the opposition party, and most of the British electorate. If he’d tried to drag Britain to war in 1938 there’s a very good chance his government implodes.

The thing is, I buy the Chamberlain defense in re: Chamberlain. Chamberlain probably made the best choice available to him, and even if he didn’t, he certainly had no good choices available, which is often the case with famous political blunders. James Buchanan is currently ranked as the worst president in American history by scholars, and between what he stood for and his ridiculous passivity in the face of secession, I don’t find that particularly objectionable. But, to be frank, he’s ranked as the very worst because of the many generic Jacksonian hacks to attain the White House he was the one who happened to be in office when the police finally raided the floating craps game. I don’t think there were any choices Buchanan could have made to keep the Democratic coalition together. Polk, often ranked as an average or above-average president, almost certainly did more to create the conditions for the Civil War than Buchanan did. Douglas would certainly have better after secession than Buchanan was, but he wouldn’t have been able to stop the secession from happening. By that point I don’t think anybody could have. The category of political leaders remembered as being uniquely bad largely because of circumstances beyond their control is real enough.

Which is exactly what makes Cameron’s incompetence so astounding — this catastrophe was a completely unforced error. He didn’t need to call this referendum, and he really didn’t need to call this referendum.

On the first point, I just don’t buy that coalition politics compelled him to call a referendum. It should have been pretty obvious that Johnson and Gove were cynical rube-runners rather than people deeply committed to leaving the EU (and, certainly, the fact that they’ve gone into witness protection after “winning” settles the question.) While I understand the temptation to use the referendum to stop the trolling, given the downside risk the better option is obviously “put up or shut up.” It is highly unlikely that Johnson could have led a successful coup against Cameron, who had just delivered the Tories their first majority government in more than 20 years even if he wanted to, which he almost certainly didn’t.

But let’s say, for the sake of argument, that you think Cameron had to call the referendum. As MacK said (and, I should note, Murc apparently agrees), it should be blindingly obvious that this referendum should have had some kind of supermajority requirement, starting with the assent of Scotland, Northern Ireland and Wales. In theory, I would also prefer something like a 60% national vote, but the multiple majority requirement would make it superfluous in any case. What you certainly don’t do is call for a referendum that would lead to Brexit given 50%+1 on any given day. Even leaving aside the merits of leaving the EU, you don’t make such momentous changes based on bare popular majorities from a single vote. That a decisive number of voters who were indifferent or actively opposed to leaving the EU might have voted Leave to send a message of frustration or patriotism or whatever is something that any remotely competent leader should have seen coming. You can blame the voters if you want, but the blame is much better directed at Cameron’s stupid decision rule.

In conclusion, Cameron massively blundered. He was trolled into calling an unnecessary referendum, and even worse structured the referendum ineptly. Comparing him to Chamberlain is unfair to Chamberlain.

St. Stein Speaks!

[ 234 ] June 25, 2016 |

Jill Stein, as is well known, is the Only Real Leftist in America. Indeed, she is a figure of such pure, undiluted leftist perfection she agrees with Donald Trump only 41% of the time. So I’m sure her thoughts on Brexit will be highly enlightening:

The vote in Britain to exit the European Union (EU) is a victory for those who believe in the right of self-determination and who reject the pro-corporate, austerity policies of the political elites in EU. The vote says no to the EU’s vision of a world run by and for big business.

This is just ludicrous nonsense. The bulk of Brexit support came from pro-austerity Tories. What Brexit means is more austerity as EU subsidies vanish, oh and also the end of progressive EU labor and environmental regulations. If you think this is a defeat for big business, I’d hate to see what a victory would look like. Granted, some City finance types will presumably have to ply their trade in Paris or New York City or Frankfurt now. FIGHT THE POWER!

Insane as this is, though, it helps to explain why she’s campaigning in swing states in a year when 1)the Democratic Party’s platform features a $15 minimum wage, expanded Social Security, and a repeal of the Hyde Amendment and 2)the Republican candidate is Donald Trump. Her politics seem to consist entirely of assuming that if something she doesn’t like loses than her ideal outcome therefore must win.

Unfortunately, the rejection was also motivated by attacks on immigrants and refugees, which must be opposed. That is a defeat.

Apart from that, Mr. Farage! Admittedly, by even acknowledging that xenophobia may have played some role in the Brexit vote, Stein risks being denounced roundly on Twitter for selling out to BIG NEOLIBERAL and wanting to punish the white working class. But, don’t worry, she departs from reality soon enough:

The increase in anti-immigrant, anti-Muslim and anti-refugee sentiment expanded because of the EU’s economic policies, and was a key driver in support of the UK’s departure from the European Union.

Ye Gods. First of all, British austerity — while certainly terrible policy! — was driven by Parliament, not by the EU. Leaving the EU will in fact result in more austerity. And if you think British political elites love austerity now, wait until Scotland leaves the UK, which it almost certainly will if Brexit proceeds. And, finally, while it’s a nice story that all racial resentments are really just epiphenomenal masks for class and economic anxieties it’s not actually true.

Seriously, if it’s very important to you not to sully your personal brand by voting for an icky Democrat in November, find a better alternative candidate than this.

Brexit — The Ultimate “Triumph” Of Voter-As-Consumer

[ 278 ] June 25, 2016 |


We’ll be seeing lots of more of this kind of thing, I would assume:

Mandy Suthi, a student who voted to leave, told ITV News she would tick the Remain box if she had a second chance and said her parents and siblings also regretted their choice.

“I would go back to the polling station and vote to stay, simply because this morning the reality is kicking in,” she said.

“I wish we had the opportunity to vote again,” she added, saying she was “very disappointed”.

Khembe Gibbons, a lifeguard from Bury St Edmunds in Suffolk, also said she had regrets about her decision after Mr Farage said he could not guarantee NHS funding.

“We’ve left the EU, David Cameron’s resigned, we’re left with Boris, and Nigel has just basically given away that the NHS claim was a lie,” she wrote.

“I personally voted leave believing these lies, and I regret it more than anything, I feel genuinely robbed of my vote.”

A woman calling into an LBC radio show echoed the sentiment, saying she felt “conned” by the claim and felt “a bit sick”.

A voter who gave his name as Adam told the BBC he would have changed his pro-Brexit vote if he knew the short-term consequences it would have for the UK economy.

“The David Cameron resignation has blown me away to be honest and the period of uncertainty that we’re going to be magnified now so yeah, I’m quite worried,” he said.

“I’m shocked that we voted for Leave, I didn’t think that was going to happen. I didn’t think my vote was going to matter too much because I thought we were just going to remain.”

I don’t know how many Brexit voters fall into the remorseful category. But I remember seeing somewhere (HELP ME BROCKINGTON) that a large majority of Brexit voters assumed that Remain would win. For what was surely a decisive number of Brexit voters, the vote was not a considered view that leaving the EU would be better than remaining, but rather was a vehicle for sending a message to British elites.

To be clear, the biggest villains here are not ordinary voters. David Cameron’s entirely unnecessary gamble was astoundingly incompetent and grossly irresponsible. The reaction of Boris Johnson — the proverbial dog that caught the car — should make it pretty clear that the anti-EU faction of the Tories were more trolls than revolutionaries. And the way you deal with trolls is to ignore them, not to try to shut them up with a binding referendum with huge downside risks. Needless to say, Johnson and Farage and the pro-Brexit tabloids are absolutely shameless liars mobilizing racist resentment, and they deserve all of the criticism they receive and worse. But Cameron knew what they were, and he empowered them to try to gain a short-term advantage within his party.

But if you want to know why I spend so much time criticizing people with prominent platforms trying to convince people the ballot box is not a place for collective political decisions but for life-affirming consumer choices, well, Bregret is why. In the American context, the consumerist arguments from the nominal left for refusing to support Democratic candidates even as the consequences of a Republican victory get increasingly dire generally don’t even really pretend to be tactical; they’re just statements that certain individuals are too good for coalitions that require sharing political space with people who fail to see your unfailing wisdom. This stuff seems harmless until it isn’t. If you want to know when I’m going to stop criticizing pundits who try to encourage this kind of thinking, or the Ralph Naders and (now, apparently) Jill Steins willing to play with fire to stoke their own egos, the answer is “never.” Elections are literally life-and-death matters.

What Brexit Means, And What It Doesn’t Mean

[ 113 ] June 25, 2016 |

Bouie has more.

Now, enjoy this dissing of America’s most ridiculously pompous blowhard, and also Donald Trump.

Does Brexit Mean We’re Doomed?

[ 339 ] June 24, 2016 |


I suspect we’re going to see a lot of this kind of analysis:

Britain’s stunning vote to leave the European Union suggests that we’ve been seriously underestimating Donald Trump’s ability to win the presidential election.

When you consider all his controversies and self-inflicted wounds over the past month, combined with how much he’s getting outspent on the airwaves in the battleground states, it is actually quite surprising that Trump and Hillary Clinton are so close in the polls. He’s holding his own, especially in the Rust Belt.

Does this make sense? Not really:

  • I mean, on one level it’s scary that Trump is within 6 points. But, still 6 points, in presidential election terms, is getting your ass kicked. And there’s no reason to think he has much upside potential.
  • It might be possible for a formidable campaign organization to overperform the polls. But Trump has the opposite of that. Clinton’s dominance of the airwaves and superior organization is going to make it harder for Trump to overcome a substantial deficit and harder to get his supporters out.
  • The argument against these facts seems to be something like “nobody expected Brexit to win, nobody expected Trump to win, but Brexit won, and Trump has already won once, so Trump can win twice.” But this doesn’t really make any sense. Unlike with Brexit, Trump took a commanding lead in the polls early on in the primaries; skeptics (like me) were ignoring the polls. I don’t think there’s any reason to believe there’s a large reservoir of untapped support for Trump that polls aren’t picking up.
  • One major comparative advantage for Brexit is that none of the prominent assholes on its side were actually on the ballot. People who would never dream of voting for Nigel Farage or Boris Johnson in a national election could vote Brexit. Implicitly voting against Cameron didn’t require voting for someone you hate as much or more. If the question on the ballot in November was “do you want Hillary Clinton to be president?” I would be pretty worried. But it’s not. If Trump is going to win, he’s going to need a plurality of voters to affirmatively vote for him, although he’s a very well-known and widely despised figure heading a nationally unpopular party while barely running a presidential campaign at all.
  • The United States is a much bigger and more diverse country, which really makes a big difference in terms, which is rather important for how a campaign based around mobilizing white resentment will play out. How is Trump going to win Florida, barely a white majority state? What’s his path to the Electoral College without it? (Hint: even if he can win Ohio and Pennsylvania, that’s not enough.)
  • Brexit is helpful to Trump for one reason only: if it harms the American economy, it hurts the incumbent party. Will the effects on the American economy be enough to make a big difference? I doubt it, but that’s the only reason to worry about Brexit in terms of the American presidential election.

Brexit Open Thread

[ 342 ] June 23, 2016 |

I guess this calls for a fresh thread. I will leave the analysis to our British correspondent, but I can tell you that LGM has obtained some exclusive footage of David Cameron, political SUPERGENIUS (#5.)

Kennedy Abandons Roberts on Affirmative Action

[ 160 ] June 23, 2016 |


I was very pleasantly surprised by Kennedy’s opinion sustaining UT’s affirmative action program today:

The strongest parts of Kennedy’s opinion dealt with Fisher’s contention that UT’s attempts to increase diversity on campus can and should be done exclusively through formally race-neutral measures. First of all, UT presented “significant evidence, both statistical and anecdotal,” that race-neutral measures are inadequate to create a sufficiently diverse campus. Given the compelling interest the state has in such diversity, it must be allowed to experiment, he said.

Even more important from a constitutional (if not a policy) perspective, Kennedy correctly argued that calling the Top 10 Percent system “race-neutral” is disingenuous. Kennedy’s opinion quoted Justice Ginsburg’s observation that such plans are “adopted with racially segregated neighborhoods and schools front and center stage,” and that “[i]t is race consciousness, not blindness to race, that drives such plans.” The Top 10 Percent plan was designed to increase racial diversity. Indeed, unless someone has a secret plan to immediately end endemic de facto school and neighborhood segregation, it is bound to have this effect in practice, since it will guarantee college placement for students in predominantly minority schools.

Kennedy’s increasing impatience with the blind formalism of his Republican-appointed colleagues helps to explain why he finally decided to uphold an affirmative action program. In the 2007 case Parents Involved in Community Schools v. Seattle School District No. 1, Chief Justice John Roberts held that race could not be used even as a tiebreaker to choose between equally qualified applicants, based on the fatuous tautology that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Given a background of extensive historical de jure discrimination and persistent de facto segregation, however, the idea that simply ignoring race is sufficient to address racism is an obvious fiction.

Justice Kennedy regrettably joined Roberts’s judgment, but wrote a lengthy, somewhat tortured concurrence in which he refused to endorse the implied conclusion that affirmative action programs are never constitutionally permissible. I will admit to being skeptical that the distinctions drawn by Kennedy in that case would ever make a difference, but today they did.

Justice Alito, conversely, was entirely unsurprising:

There is no small irony in the fact that Justice Samuel Alito, who wrote a long dissent to Kennedy’s opinion, is an alumnus of the Concerned Alumni of Princeton, a group that opposed the gender and racial integration of the university. He is hardly the first conservative to opportunistically discover the value of “colorblindness” once its effects were to make campuses more, rather than less, white.

Alito’s opinion attempts a number of would-be “gotchas” that aren’t very convincing. At one point, he complains that “UT also offers courses in subjects that are likely to have special appeal to members of the minority groups given preferential treatment under its challenged plan.” I confess it is not obvious to me how offering, for example, a Black Studies program and giving students substantial freedom to choose courses demonstrates that the University of Texas is not really committed to racial diversity. Alito also chides UT for using SAT scores, which have “often been accused of reflecting racial and cultural bias.” But, of course, the correlation between SAT scores and racial socioecomomic status is exactly the kind of factor UT’s holistic admissions evaluations—which Alito considers unconstitutional—are designed to take into account. UT is constitutionally permitted to ignore SAT scores—but should also be constitutionally permitted to consider them while placing them in the proper context.

Alito’s complaints about colleges offering courses to appeal to minority groups and “give[ing] undergraduates a very large measure of freedom to choose their classes” were telling. I must admit I was not aware that the 14th Amendment enacted Mr. Allan Bloom’s The Closing of the American Mind…

Today at the Court

[ 104 ] June 23, 2016 |


I have a roundup of today’s decisions. I’ll also have more on the pleasantly surprising Fisher decision later today or tomorrow.

“There Are Too Many Black People On American Currency Nowadays. Please Eliminate One. I Am Not A Racist Crackpot.”

[ 85 ] June 22, 2016 |


Steve King, everybody:

King filed an amendment late Tuesday to an appropriations bill that would prevent money from being spent on any redesigns of the country’s currency. And he made it clear that his intention is to keep bills looking exactly the way they do now.

“It’s not about Harriet Tubman, it’s about keeping the picture on the $20,” he told Politico, even though Jackson’s image will still be on the back of the bill. “Y’know? Why would you want to change that? I am a conservative, I like to keep what we have.”

He also called it “racist” and “sexist” to say that the United States should put a woman or person of color on the country’s money. “Here’s what’s really happening: This is liberal activism on the part of the president that’s trying to identify people by categories, and he’s divided us on the lines of groups,” he said. “This is a divisive proposal on the part of the president, and mine’s unifying. It says just don’t change anything.”

Donald Trump becoming the Republican Party’s presidential nominee is just a completely inexplicable phenomenon that randomly came out of nowhere.

Let Us Dispel With The Fiction That Marco Rubio Isn’t A Glib Snake Oil Salseman

[ 107 ] June 22, 2016 |


Of course:

Despite repeatedly insisting he would return to life as a private citizen after his failed bid for the presidency, Sen. Marco Rubio (R-FL) is expected to announce he’s running for re-election on Wednesday, the Washington Post reported.

Rubio had already begun informing key Republicans he is running ahead of the formal announcement, two anonymous sources told the Post.

“I think that the point that really drove me to change my mind is that as we enter this kind of new chapter in our history here is, there’s another role the Senate plays that I think can be really important in the years to come,” Rubio told the Miami Herald about his decision to run.

Ah, memories:

To be Scrupulously Fair, this could still be true! Indeed, if Trump brought his electoral ambitions down again it would be perfect.

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