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Why Merrick Garland Will Not Get A Confirmation Hearing

[ 124 ] April 13, 2016 |
Sen. Chuck Grassley, R-Iowa, speaks during a Senate Judiciary Committee hearing on immigrant women and immigration reform on Capitol Hill in Washington, Monday, March 18, 2013. (AP Photo/Jacquelyn Martin)

Sen. Chuck Grassley, R-Iowa, speaks during a Senate Judiciary Committee hearing on immigrant women and immigration reform on Capitol Hill in Washington, Monday, March 18, 2013. (AP Photo/Jacquelyn Martin)

It’s pretty straightforward:

Despite massive pressure from Democrats, Grassley is sticking steadfastly to his vow not to hold hearings or a confirmation vote on Garland before November’s elections, arguing that voters deserve to pick the person who will nominate the next high-court justice. As chairman of the Judiciary panel that considers Supreme Court nominations, Grassley is largely responsible for deciding whether to hold confirmation hearings.

So far, most of his GOP colleagues support his unwavering stance — only two, Sens. Mark Kirk (Ill.) and Susan Collins (Maine), favor hearings. Even if Senate Majority Leader Mitch McConnell (R-Ky.) never budges on hearings, Grassley could theoretically change his mind and advocate for them.

For Grassley, 82, the political calculus is pretty simple: He’d much rather take heat from Democrats than Republicans in a wildly unpredictable election year in which Donald Trump may top the ballot in this swing state. Conservatives have posed a problem for Grassley in the past. Six years ago, when he was last up for reelection, he faced an uprising from the right for trying to craft a bipartisan health-care plan with then-Sen. Max Baucus (D-Mont.).

The vast majority of the Republican conference, including the leadership, has much more to fear from the primary electorate than the general one, and the primary electorate is also much more likely to care about issues like Supreme Court confirmations than the dwindling number of general election swing voters. How many Senate Republicans are willing to put their jobs on the line to avoid the downside risk of a marginally more liberal Supreme Court nominee? The answer is “not enough.”

It’s also worth noting that this dynamic if anything gets worse after the election, which is why Grassley is writing op-eds about how an 8-member Supreme Court is not a big deal. If the Republicans retain control of the Senate, it will be enormously difficult for a Democratic president to get anyone confirmed. Who are the Senate Republicans willing to take on a huge political liability so that unresolved circuit splits can be turned into 5-4 liberal victories, exactly?

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Life After Shelby County

[ 72 ] April 13, 2016 |

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“Instead, the Court strikes §4(b)’s coverage provision because, in its view, the provision is not based on “current conditions.”  It discounts, however, that one such condition was the preclearance remedy in place in the covered jurisdictions, a remedy Congress designed both to catch discrimination before it causes harm, and to guard against return to old ways. Volumes of evidence supported Congress’ determination that the prospect of retrogression was real. Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Shelby County v. Holder (Ginsburg, J., dissenting.)

This year marks the first presidential election in 50 years without a functioning Voting Rights Act — and it’s not going well.

Republican lawmakers have been devising efforts to make it harder for Americans to vote for many years, since the GOP took over statehouses across the country in 2010. Those efforts culminated in 2013 with the Supreme Court’s decision to strike down key portions of the Voting Rights Act (VRA), a formerly untouchable cornerstone of civil rights. For the past three years, states and jurisdictions have no longer had to clear potentially discriminatory laws with the Department of Justice — at least not as long as a Congress controlled by radical, right-wing factions continues to sit on the rewrite of the VRA.

Meanwhile, emboldened by that Supreme Court victory, other Republican-controlled states have accelerated their efforts to disenfranchise low-income, minority voters, whether it’s through photo identification requirements or limiting the number of polling locations. In 2016, 17 states will have new voting restrictions in place for the first time in a presidential election.

While Republican lawmakers like to claim that the laws are not suppressing votes, stories from across the country speak for themselves. In Arizona, voters waited up to five hours in line in order to cast ballots. In South Carolina, people were given misleading information about the state’s voter ID law. And in Wisconsin, students were disenfranchised because polling places refused to accept their out-of-state IDs.

Ginsburg’s dissent is and remains unanswerable, but the problem is that the majority wanted a hard rain after they threw away the umbrella.

Cruzing in Cleveland?

[ 173 ] April 12, 2016 |

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After some not-quite-denials of interest, Paul Ryan finally decided to go the full Sherman today, apparently having decided that inevitably failing at one job is enough.

One upshot of this, I suspect, is a recognition on Ryan’s part that the Republican nominee is going to be Trump or Cruz. The fantasy of an Establishment White Knight triumphantly parachuting in and taking the nomination requires, inter alia, that a party establishment that couldn’t turn a bottle of Tanqueray, a can of tonic water, sliced limes and ice into a Gin and Tonic execute an incredibly deft and complicated series of maneuvers on behalf of a hypothetical candidate who will apparently not be Paul Ryan. Anybody who thinks this is a plausible scenario really needs to explain specifically how this is going to work.

It’s also becoming increasingly apparent that if Trump doesn’t win on the first ballot the nominee will be Cruz. I would return here to the crucial distinction between having the support of the establishment and not being a politician at all. Trump has shown that it’s not literally impossible to win without a serious campaign apparatus, but it’s enormously difficult. Cruz is an actual politician with a serious organization, and the drubbing he’s giving Trump in selecting delegates at the state level would be repeated in Cleveland. Trump has no virtually no chance of beating Cruz in a contest for unbound delegates. If Cruz can deny Trump an outright majority — and that’s how to bet right now — it’s overwhelmingly likely that the nomination is his.

Losing Does Not Drive Democrats to the Left

[ 500 ] April 12, 2016 |

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For the most part, Kathleen Geier and Joshua Holland do an excellent job on the correct side of The Nation’s four-part debate about #BernieorBust, so I don’t have a lot to add. There are, however, a couple of odd arguments in Doug Henwood’s entry, one idiosyncratic and one reflecting a fundamental misunderstanding of the American political landscape. The former first:

…it’s likely [Clinton would] rip up the nuclear deal with Iran—more elegantly than Donald Trump, perhaps, but no less thoroughly

Um, what? There are plenty of good reasons to attack Clinton on foreign policy, but this is just nuts. It’s an excellent illustration of what obsessive personal hatred does to your political judgment. There really isn’t the slightest reason to believe that Clinton would rip up the Iran deal.

To get to the more common error:

I won’t argue with anyone who wants to vote for Clinton because the alternative is so horrible—though we’ve been hearing this for decades, without the least recognition that this lesser-evil habit lubricates the endless rightward shift of our politics.

This represents a collision between multiple erroneous assumptions:

  • There is of course no “endless rightward shift” in our politics. The federal status quo has shifted substantially to the left over the past 8 years — cf. health care policy, tax policy, environmental policy, financial and consumer regulation, LBGT rights, etc. etc. etc. The Democratic Party is well to the left of where it was not only in 1994 but in 1977. Only three presidents have complied an even arguably more impressive record of progressive achievement than Obama, and all 3 did so in substantially more favorable political circumstances.
  • It is true that the Republican Party continues to shift to the right. This is important, because the way this is happened is precisely the opposite of the rejection of lesser-evilism that Henwood implies is the path to political change. While #BernieorBusters tend to be obsessively focused on the presidency and challenges to the Democratic Party (whether through third party challenges or abstention), Republicans have 1)worked within the party and 2)focused more on Congress and statehouses.  While they have sometimes overreached, the right of the Republican Party has followed a very effective formula — try to get the most conservative viable candidate nominated and vote for the Republican win or lose in the primaries. It’s simple, but it works. Alas, the right has been much less susceptible to third party wankery, and their effective vote suppression efforts are appalling but also show that they understand that elections are important enterprises, not vehicles for individual consumer expression.
  • There’s an additional assumption here, which is that if the Democrats lose they will be forced to move to the left. But what is the basis for this assumption? They didn’t after 1968, they didn’t after 1972, they didn’t after 1984 (which produced the DLC), they didn’t after 1994. They have finally moved left now, but this was much more about the wins in 2006 and 2008 than the loss in 2000.

But, of course, most such arguments aren’t business; they’re personal.

Two Awful Tastes That Taste Even Worse Together

[ 47 ] April 12, 2016 |

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This seems about right:

The Republican front-runner spoke to approximately 10,000 people at the downtown Albany arena Monday night but had to stop five times due to demonstrators.

[…]

Opening the rally, businessman Carl Paladino, who is organizing Trump’s efforts in New York, spoke about the candidate and the groundswell of support he has received.

“They call us the silent majority … how silent are you?” he asked the crowd, which erupted in a roar.

Using a theme that would repeat throughout the evening, Paladino asked, “Are we going to build that wall? Are we going to make Mexico pay for it?”

The thousands of supporters responded with a thundering “yes,” and followed up with their chant, “Build that wall. Build that wall.”

Ah, yes, Carl Palidino — the man who rode anti-Muslim demagoguery to the Republican nomination and then ran a disastrous general election campaign involving yet more racism, threats of violence, stuff like that there. Trump before Trump, one might say. Perfect.

“Yah, okay, I’ll have my girl send you over a copy, then.”

[ 103 ] April 11, 2016 |

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Chait highlights perhaps the most ridiculous part of the NYT’s embarrassing Paul Ryan hagiography Erik highlighted earlier:

The magical-realism version of the Ryan platform involves heaping doses of empathy and wonkishness. As always, the evidence for this lies not in any concrete commitments but in promises lying somewhere over the horizon. The key passage from today’s Times story: “For example, if the Republican nominee does not provide an alternative to the Affordable Care Act — something Republicans have failed to do since it passed in 2010 — Mr. Ryan intends to do so, just as he will lay out an anti-poverty plan.”

Note the “intends to,” a phrase that captures Ryan’s uncanny ability to have his assurances taken at face value. Republicans have been promising that they were on the cusp of unveiling a party-wide alternative to the Obama administration’s health-care reform since the debate began in 2009, but they have never quite managed to do so. Republican alternatives to Obamacare have lain just over the horizon for half a dozen years, and oddly enough, the pace of their imminent unveiling appears to have increased. Consider a small sampling of the recent time frame. In January 2014, Ryan promised he would develop a Republican plan that year. By March, the Washington Post was reporting the unveiling of this plan as a fait accomplit…

The plan never came. In April of that year, it was still in development but due to come out extremely soon. “Sen. Marco Rubio and Rep. Paul Ryan are collaborating on an Obamacare alternative and could announce the proposal as early as this month, according to Republican sources,” reported the Washington Examiner.

The next year, Ryan renewed his commitment to reveal his plan very, very soon. In February, 2015, Ryan announced the plan would be out by the end of March. By the end of March, there was still no plan, but Ryan did declare that Republicans “must have a plan to replace Obamacare by late June.” June came and went, and summer turned to fall, and fall to winter. By December 2015, Ryan proclaimed the need for a Republican plan “urgent.”

By January of this year, Ryan — asked if the promised plan would come to a vote — said, “Nothing’s been decided yet.” Later that month, his spokesperson was insisting that many steps had yet to take place, and it was out of Ryan’s hands. “As the speaker has said many times, committees, not leadership, will be taking the lead on policy development,” Ryan spokesperson AshLee Strong told the Washington Post. “The next step will be forming committee-led task forces that will hold listening sessions with Republican members … The task forces will then develop the specific policy.” Task forces, committees, listening sessions — there is just so much to do.

The reason the dog keeps eating the Republicans’ health-care homework is very simple: It is impossible to design a health-care plan that is both consistent with conservative ideology and acceptable to the broader public. People who can’t afford health insurance are either unusually sick (meaning their health-care costs are high), unusually poor (their incomes are low), or both. Covering them means finding the money to pay for the cost of their medical treatment. You can cover poor people by giving them money. And you can cover sick people by requiring insurers to sell plans to people regardless of age or preexisting conditions. Obamacare uses both of these methods. But Republicans oppose spending more money on the poor, and they oppose regulation, which means they don’t want to do either of them.

The fact that Republicans can claim to have an ACA replacement and anti-poverty plan forthcoming and be taken at face value by credulous journalists is about as pure a distillation of the felt necessity to present a “shape of the world, views differ” perspective as you can find. “I fully intend to put forward a replacement for Obamacare, really” is not even a complicated scam. It’s the most obvious and pathetic one: “my check’s on the mail” and “my Audi’s in the shop” from a man who has never made a payment on his loan and has been driving a ’93 Geo Metro since you met him six months ago. But it’s an iron law among a certain kind of journalist that there must be a Serious, Moderate Major Republican, and when the competition is the likes of Donald Trump and Ted Cruz Paul Ryan gets the gig purely by default.

Camille Paglia Sorts Out Reproductive Freedom For You

[ 88 ] April 11, 2016 |

I must say that one effect of the combination of the proliferation of increasingly restrictive TRAP laws and conservative attacks on contraceptive access is that we’ve seen a merciful reduction in the quantity of America Could Solve Our Deeply Troubling Crisis Of People Disagreeing About Abortion By Agreeing That My Center-Right Views Are Indisputably Correct op-eds. Camille Paglia, however, is nothing if not an anachronism, and so:

The real issue is that U.S. politics have been entangled and strangled for far too long by the rote histrionics of the abortion wars, which have raged since Roe v. Wade

I wish someone had told the anti-abortion activists who stopped state after state from liberalizing their abortion laws before 1973 that abortion wasn’t actually a political issue until the Supreme Court got involved.

While I am firmly pro-choice and support unrestricted access to abortion, I have been disturbed and repelled for decades by the way reproductive rights have become an ideological tool ruthlessly exploited by my own party, the Democrats, to inflame passions, raise money, and drive voting.

“I support abortion rights, but this doesn’t mean I support taking the necessary actions to keep abortion legal.”

I wish I was kidding:

This mercenary process began with the Senate confirmation hearings for three Supreme Court candidates nominated by Republican presidents: Robert Bork in 1987, David Souter in 1990, and Clarence Thomas in 1991. (Bork was rejected, while Souter and Thomas were approved.) Those hearings became freak shows of feminist fanaticism, culminating in the elevation to martyr status of Anita Hill, whose charges of sexual harassment against Thomas still seem to me flimsy and overblown (and effectively neutralized by Hill’s following Thomas to another job). Abortion was the not-so-hidden motivation of the Democratic operatives who pushed a reluctant Hill forward and fanned the flames in the then monochromatically liberal mainstream media.

Jesus Christ, where even to begin with this?

  • Robert Bork was given hearings and an up-and-down vote by the Senate. He was voted down because his substantive views, which included the view that the Constitution did not protect a woman’s right to choose to have an abortion, or indeed protect any kind of right to privacy. Roe v. Wade would have been overruled had he been confirmed. As a staunch supporter of reproductive rights, Camille Paglia deplores that Roberts Bork was voted down. Oh.
  • Can someone remind me what the freak show[] of feminist fanaticism” at the Souter hearings was supposed to be?
  • Anita Hill was almost certainly telling the truth, and the idea that she was compelled to testify by evil interest groups insulting nonsense, as is the idea that Hill working for Thomas again means that she couldn’t have been sexually harassed.

[The banal-at-best recounting of the waves of feminism that Paglia uses to lard virtually everything she writes is omitted. You’re welcome.]

My position on abortion is contained in my manifesto, “No Law in the Arena,” from my second essay collection, “Vamps & Tramps” (1994)

Is HA! Goodman was a Paglia sockpuppet? I guess his prose is too lean.

Despite my pro-abortion stance (I call the term pro-choice “a cowardly euphemism”), I profoundly respect the pro-life viewpoint, which I think has the moral high ground.

You can, I suppose, be pro-choice and believe that opponents of legal abortion have “the moral high ground.” But spare me the talk about “cowardly euphemisms” when you’re talking this crap. As the response to Donald Trump’s Kinsleyan gaffe so neatly illustrated, the American “pro-life” position is an intellectual, moral, and legal shambles.

The one exception is Naomi Wolf, with whom I have disagreed about many issues. But Wolf showed admirable courage in questioning abortion in her 1995 essay, “Our Bodies, Our Souls,”

Oh, gawd. She should stick to some of Wolf’s less silly work, like “all other women are doing the sex wrong” and “Edward Snowden is a willing accomplice of Big Surveillance.”

Hillary deals in those smears as her stock in trade: for example, while campaigning last week, she said in the context of Trump’s comments on abortion, “Women’s health is under assault in America”—as if difficulty in obtaining an abortion is more of an assault than the grisly intervention required for surgical termination of a pregnancy. Who is the real victim here?

As the staunchest supporter of abortion rights evah, Camille Paglia wishes you to know that Hillary Clinton is awful for believing that women’s right to have access to a safe health procedure should take precedence over the fact that medical procedures can sound sort of icky when you describe them.

And now, the hoariest of hoary junior-high-school pro-life talking points:

There are abundant contradictions in a liberal feminism that supports abortion yet opposes capital punishment.

First, you don’t want the state to coerce a women to carry her pregnancy to term. Then you don’t want the state to arbitrarily select a minority of people who may or may not be guilty of serious crimes and put them to death. MAKE UP YOUR MIND!

This has been how to think about reproductive freedom with the most pro-choice — sorry, pro-abortion- person in known human history, Camille Paglia.

The Wisconsin Right-to-Work Ruling Probably Won’t Hold Up

[ 49 ] April 9, 2016 |

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Right-to-work laws are terrible, so I’d like to tell you that yesterday’s decision holding Scott Walker’s version unconsitutional was sound and likely to stand up on appeal. Judge Foust is correct as a policy matter that the free-rider problem created by such laws is undesirable, and quoting Justice Scalia to make this point is a nice touch. Nonetheless, the question is not whether the law is bad policy but whether it’s constitutional, and here things are pretty problematic. Foust rules that Walker’s anti-union bill represents an unconstitutional “taking,” and that the state cannot require unions to represent non-dues payers without compensation. The law was held unconstitutional under the state, not federal, takings clause, but he still cites the federal Penn Central case as controlling what determines a regulatory taking and uses its balancing test. This is…just not a good argument:

  • The statute is quite clearly not a taking under Penn Central. The standards for a regulatory taking — a taking that does not involve the state taking actual possession of private property — are very high. Regulations do not become takings merely because they impose economic burdens or have allegedly suboptimal policy effects. Foust’s argument that the right-to-work statute meets this threshold is exceedingly unpersuasive.
  • The threshold for a regulatory taking should be high. To be frank, Foust is using a crank libertarian argument for progressive ends here. You may remember attempts to broadly define regulatory takings from such precedents as Richard Epstein’s argument that the entire 20th century regulatory and welfare state is unconstitutional  and the profit-taking Larry Tribe’s argument that the EPA cannot regulate carbon emissions.  Not only does this standard of regulatory taking have no plausible basis, the policy effects of this would be massively pernicious if applied with any frequency.

I’m sure Foust means well, but in all honesty his regulatory takings argument needs to be put on a barge on Lake Michigan and set on fire, which I assume the appellate courts will do. It’s a bad law, but in this case it’s a bad law that needs to be changed by electing a Democratic legislature and governor, or by amending the state constitution to actually forbid right-to-work laws.

New York Values

[ 228 ] April 7, 2016 |

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Not Ted Cruz’s values, and score one for New York.

The WHITEY TAPE Is Coming!

[ 25 ] April 7, 2016 |

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Charlie deals with HA! Goodman so I don’t have to.

Listening to Hag

[ 36 ] April 7, 2016 |

The extent to which “Okie From Muskogee” has dominated Merle Haggard’s legacy is unfortunate. Not because the first person song about a third person misleading about his politics if taken at face value; although it is, he would be a titan of American music even if he was a dyed-in-the-wool reactionary. (It should also be noted that in the great Nashville tradition “Okie” is simultaneously a novelty song and a great song; in today’s political moment it should be obvious that it nails a very real sentiment.) But because I get the impression that it’s swamped one of the deepest books of quality songs in American country music.

Admittedly, one problem (as we discussed with George Jones) is that country in Haggard’s era was a singles music, with albums being quickie hits-plus-filler jobs often recorded for a wide variety of labels. I was lucky enough to purchase the superbly chosen multi-disc multi-label all-originals box Down Every Road in a Seattle used CD shop for 20 bucks, which was apparently a rare good investment on my part financially as well as culturally. It is still available as a download, not cheap but if you have any feeling for his music at all you won’t regret it. While even great peers like Cash or Nelson can drag a little stretched over 4 lengthy CDs, this one has remarkably few duds, and the best stuff helped ot define the music,

Like a lot of aging country artists, he started to take albums more seriously just as the broader culture was moving away from the form. His late albums are fans-only and not where to start, but the well-chosen songs distinctively song and tastefully arranged have their pleasures. I love his version of Blaze Floey’s “If Only I Could Fly,” for example:

Still, trying to access his catalog can be intimidating. Ben Ratliff has a very useful starting guide. R.I.P.

The Futility of Determining the “Original Meaning” Of the 14th Amendment

[ 33 ] April 6, 2016 |

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Justice Alito said something rather interesting in his concurrence in this week’s voting rights case:

The opinion of the Court suggests that the rejection of Stevens’ proposal signified the adoption of the theory that representatives are properly understood to represent all of the residents of their districts, whether or not they are eligible to vote. As was the case in 1787, however, it was power politics, not democratic theory, that carried the day.

[…]

The list could go on. The bottom line is that in the leadup to the Fourteenth Amendment, claims about representational equality were invoked, if at all, only in service of the real goal: preventing southern States from acquiring too much power in the National Government.

This is, in fact, accurate. I would strongly recommend Mark Graber’s recent paper, which shows that the framers of the 14th Amendment were largely uninterested in the precise wording of Section 1, and were almost exclusively focused on Section 2. I’ll have more on the implications of his argument later, but it’s relevant here. Their belief, essentially, was that in light of Dred Scott it didn’t really matter how you worded federal civil rights protections if people opposed to civil rights controlled the Supreme Court. If, for example, people like John Roberts and Sam Alito were pivotal Supreme Court votes, no matter how explicit you made congressional authority to prevent racial discrimination in voting in the 15th Amendment, it wouldn’t matter. You have to say they were prescient.

Trying to determine the “original meaning” of the Equal Protection clause, then, is essentially pointless, because the framers recognized that its meaning would depend on court personnel.

This doesn’t make Alito’s conclusion valid, however. If he consistently believed that because the 14th Amendment was the product of power politics and written by people who were not naive legal formalists that the Supreme Court should simply not act to enforce it, that would be one thing, but as we’ve seen he doesn’t. So the Supreme Court should try as best they can to protect the democratic equality that was the central purpose of the 14th Amendment. And this means when state legislatures change the denominator in order to dilute minority representation, it’s unconstitutional.

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