Saturday, February 27, 2016

Didn't see this one coming

Chris Christie has endorsed Donald Trump.   The surprising thing is that Christie was considered one of the four, along with Bush, Rubio, and Kasich, who were acceptable to the anti-Trump GOP establishment and to moderate and independent voters.

Now Christie's endorsed the one who gives these same politicos the vapors.   Oh, lawsey me, Beulah !!  Bring me mah smellin' salts !!

And he timed it perfectly to capture the news cycle -- just as the disappointing boy wonder Marco found his inner lion and landed some blows on The Donald in the debate the night before.   The circus is now on the verge of becoming a circular firing squad.

Or not.   You gotta wonder what Christic got from Trump.   Not VP.  Too much competition.   How about Attorney General Christie?


PS:  Wouldn't that be rich?   President Trump, whose for profit Trump University is being sued for fraud, nominates Christie for AG, and he can't get confirmed because he's under criminal indictment for corruption as governor.

Scalia's death will have real consequences in real people's lives.

Former Gov. Bob McDonald (R-VA) was convicted of corruption for accepting money and expensive gifts in exchange for using the power of the governor's office to promote the man's private business.  McDonald was sentenced to two years in jail.

The conviction was upheld by an appeals courtMcDonald then appealed to the U. S. Supreme Court, and SCOTUS accepted the caseThey could have just let the lower court decision stand, so at least four justices must have felt there is a good chance they will overturn it.  They went even further and voted to put the sentence on hold until they hear the case in April.   I think that would take five votes.  Justice Scalia almost surely was in that majority.

Now, with Scalia's death, the case will be heard and decided by eight justices.  It's possible that the court may end in a 4 to 4 tie, which would mean that the appeals court decision stands, and McDonald goes to jail.

It's possible that, with a cooperative senate, Scalia's replacement could still be seated before the April hearingThus, it's conceivable that McDonald could go free.  Don't count on it, given the recalcitrance of the Republicans to even meeting with, much less confirming, an Obama nominee.

Another possibillity is that McDonald might have five votes anyway in the remaining eight.  We don't know.   But, if it was the usual 5 to 4 liberal-conservative split on the procedural vote (with Scalia), then McDonald now has to win one of the liberals in order to go freeScalia's vote could have meant the difference between jail and freedom for this former Republican governor.

The loss of Scalia's vote will result in other 4 to 4 ties in cases where the lower court decision will standSome will thus end in outcomes that liberals favor, while others will result in conservative-pleasing outcomes -- the Texas abortion clinic case being one of those.  There the appeals court upheld the restrictive law that will close most of the facilities in Texas.

In such a situation, however, if a tie without Scalia favors conservative positions, then Scalia's vote would only have added to that.   At least, with a tie rather than a 5-4 ruling, it will apply only to the case heard;  it will not be generalized to all states, which leaves it open to another abortion clinic case being decided after a Democratic appointee joins the court and gives a liberal majority.


Friday, February 26, 2016

David Duke, former KKK head, backs Trump

David Duke, former head of the KKK and one time presidential candidate himself, has put out a call for people to volunteer for Donald Trump's campaign and to get out the vote for him.    He told them they would "meet like-minded people" among Trump supporters.
Other far right and White Supremacist groups have previously indicated their preference for Trump, who has very mildly repudiated what they stand for.  Let's see what he does now with the greater publicity that David Duke's endorsement will engender.


An interesting suggestion for Scalia's replacement

Professor Michael Broyde of the Emory Unviersity Law School has made a different recommendation for replacing Justice Antonin Scalia, given the difficult political struggle between the president and the Republican senators.

Rather than trying to find a moderate that could get confirmation, or making a recess appointment which would last only through December 2016, the president could . . .
*   *   *
". . . appoint a leading legal mind [who is] at the end of his career. In particular, the President should nominate Judge Richard Posner to the Supreme Court. Posner is a leading intellectual light of the past half-century in law.  He is the author of more than 40 books -- many of them landmarks and classics in diverse fields. 

"He has been a judge on the 7th U.S. Circuit Court of Appeals since 1981.   The Journal of Legal Studies found Posner to be the most-cited legal scholar of all time by a considerable margin. He is respected by judges, law professors and lawyers alike. He is the modern 'Albert Einstein' of American law, and it has always been an embarrassment to the legal system that he is not a member of the Supreme Court. Imagine the NBA Hall of Fame without Michael Jordan: Richard Posner is the Michael Jordan of Law.

"Three additional factors are important in supporting Posner's selection.  The judge is not a moderate but an iconoclast, with unique positions that neither political party fully supports:   He supports same-sex marriage, is a conservative on economic matters, opposes the war on drugs, minimizes privacy and is famous for undertaking economic analysis of many issues.

"Everybody agrees with him sometimes and almost no one all the time. Second, Posner is already 77 and is unlikely to serve for many decades given his age. The next President could conceivably name Posner's successor.

"Finally, and most importantly, the idea that one of the leading lights of law worldwide is a Supreme Court justice ought to make anyone who cares about the high court and the law proud to be an American."
*   *   *
I don't presume to know a lot about Judge Posner, but just from ordinary newpaper reading I know that he often gets into battles with a range of legal minds, such that it's hard to peg him into any pigeon hole . . . except prodigious and perhaps brilliant.


Thursday, February 25, 2016

Koch adviser joins Rubio team as adviser

Although Charles and David Koch have said that they plan to spend nearly $900 million from their network of political donors to defeat Democrats in 2016, they have not yet endorsed a presidential candidate.   That may be about to change.

Politico announced today that Marc Short, the Koch's top political operative, is joining Marco Rubio's campaign as a senior adviser.  He has been president of the Koch backed Freedom Partners.   Koch support means lots of money, but it also means access to their vast data bank of voter information.

Yes, but how does that help overcome Trump's message -- which has caught fire -- of fighting back against the establishment and the candidates bought by big donors?


Trump's big win in Nevada . . . and Cruz's loss.

The Nevada caucuses were made a part of the quartet of early-voting states to represent both the western states and a more demographically diverse population.  Here are the results.

          Trump           45.95%
          Rubio             23.9%
          Cruz                21.4%
          Carson             4.8%
          Kasich              3.6% 

This was a big and a very significant win for Trump.  He has now won in New England, the South, and the West and came close in the Midwest.   And, even more significant, in Nevada he came in first in  almost every category:   women, evangelicals, more educated, less educated, moderates, and those who identify as "very conservative," -- but also with unions members and Hispanics.

Consider the bad news for Cruz:   his two big constituencies are:   "very conservative" and "evangelical."   He lost both to Trump.   As to other categories, we should remember that this was a Republican primary, and all those categories have "Republican" attached.   Just how many Republican Hispanics are there, how many Republican union members?   In a one-to-one, Hillary will probably carry those latter categories easily against Trump.

But this was a primary;  and for Trump to win over Cruz among evangelicals and very conservative voters is really bad news for Cruz.   Perhaps his dirty tricks are catching up with him.

Rubio's second place win was enough to keep him in the race, pick up some endorsements and probably big donors.   He and Jeb have talked and plan to meet.   Would his endorsement help?   Not much.   Rubio seems the only viable opponent for Trump at this point.  But he's got to start winning some states.    Super Tuesday will be the big test for him.   It may just be too late.

Which brings us to the question:   Can Trump beat Clinton?   I think that depends on what happens between now and November.   If there is a major terrorist attack, yes he might be swept into office on a wave of nationalist fervor and fear -- plus blame of Obama and Hillary as his Sec. of State.

Or if they manage to make her emails a big issue, that could do it.    Yesterday, a federal judge gave the go-ahead on an important procedural issue in the case.   It had to do with requiring testimony from her top aides from that time.  I think this is the scenario in which Bloomberg might step in and run an independent campaign, if it looks like she will falter.

Another scenario would be if Trump does a pivot and starts acting like an adult, appoints some good advisers and listens to them, indicating that he is taking it seriously.   Then he would appeal more to independents and conservative Democrats and moderate Republicans, who might otherwise stay home.    Combine his broad, populist appeal with acting like a serious-minded candidate, willing to learn how to be president -- that could make him really formidable in November. 

It is a bit sobering to look at the comparable turnout.   The Democratic caucuses in Nevada totaled around 12,000.   The Republicans had about 75,000.  And the Democrats had the advantage of holding theirs on a Saturday;   the Republicans caucused on Tuesday night.  Nobody is talking about that.

I did early voting yesterday and cast my vote for Bernie Sanders.   I don't see a path to victory for him, but I wanted to register my approval for his goals and his idealism and to thank him for running this race and pulling Hillary to the left.

I've followed presidential politics ever since the days of Jack Kennedy.    There's never been anything like this one as a fascinating process to watch unfold.


Wednesday, February 24, 2016

"Scalia worked to make the United States less fair, less tolerant." -- Jeffrey Toobin

Jeffrey Toobin is a lawyer, former assistant U.S. Attorney, journalist, and author of The Nine:  Inside the Secret World of the Supreme Court.  His scathing article on the legacy of Antonin Scalia is in the February 29th issue of the New YorkerIt begins:

"Antonin Scalia, who died this month, after nearly three decades on the Supreme Court, devoted his professional life to making the United States a less fair, less tolerant, and less admirable democracy. Fortunately, he mostly failed. Belligerent with his colleagues, dismissive of his critics, nostalgic for a world where outsiders knew their place and stayed there, Scalia represents a perfect model for everything that President Obama should avoid in a successor. The great Justices of the Supreme Court have always looked forward; their words both anticipated and helped shape the nation that the United States was becoming. . . .  Scalia, in contrast, looked backward.

"His revulsion toward homosexuality, a touchstone of his world view, appeared straight out of his sheltered, nineteen-forties boyhood. When, in 2003, the Court ruled that gay people could no longer be thrown in prison for having consensual sex, Scalia dissented, and wrote, 'Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.' . . .  

"But it was in his jurisprudence that Scalia most self-consciously looked to the past. He pioneered “originalism,” a theory holding that the Constitution should be interpreted in line with the beliefs of the white men, many of them slave owners, who ratified it in the late eighteenth century. . . . "
*     *     *
Toobin then focuses on Scalia's 2008 majority opinion that interpreted the Second Amendment's right to bear arms as applying to an individual's right, thus opening the door to today's unfettered claim to own and carry almost any firearm of choice.   My answer to Scalia is this:   If you insist that it means only what the authors meant at the time it was written, then I insist that it should apply only to the types of firearms available at the time.   Let people have all the barrel-loading muskets they want.   Since it takes about two minutes to reload after each firing, not too much damage can be done.   But let's agree that the Second Amendment does not apply to modern weapons.
*     *     *
Back to Toobin, who continues:

"Scalia described himself as an advocate of judicial restraint, who believed that the courts should defer to the democratically elected branches of government. In reality, he lunged at opportunities to overrule the work of Presidents and of legislators, especially Democrats. Scalia helped gut the Voting Rights Act, overturn McCain-Feingold and other campaign-finance rules, and, in his last official act, block President Obama’s climate-change regulations. Scalia’s reputation, like the Supreme Court’s, is also stained by his role in the majority in Bush v. Gore. His oft-repeated advice to critics of the decision was “Get over it.”

"Not long ago, Scalia told an interviewer that he had cancelled his subscription to the Washington Post and received his news from the Wall Street Journal, the [ultra conservative] Washington Times . . . and conservative talk radio. In this, as in his jurisprudence, he showed that he lived within the sealed bubble of contemporary conservative thought. . . . 

"Scalia . . . and his allies succeeded in transforming American politics into a cash bazaar, with seats all but put up for bidding. But even though Scalia led a conservative majority on the Court for virtually his entire tenure, he never achieved his fondest hopes—. . .  Roe v. Wade endures. Affirmative action survives. Obamacare lives. Gay rights are ascendant; the death penalty is not. . . . .

"[T]he Justices rarely stray too far from public opinion. And, on the social issues where the Court has the final word, the real problem for Scalia’s heirs is that they are out of step with the rest of the nation. The public wants diversity, not intolerance; more marriages and fewer executions; less money in politics, not more. Justice Scalia’s views—passionately felt and pungently expressed though they were—now seem like so many boats against the current, borne back ceaselessly into the past."
*     *     *

Tuesday, February 23, 2016

Ted "Dirty Tricks" Cruz fires senior staff member

The truth of Ted Cruz's dirty tricks mentality is beginning to seep through the cracks in his fake piety facade.   Whether its Chris Christie and Bridgegate or Richard Nixon and Watergate, what one's staff does usually reflects what they know the boss wants them to do -- whether he explicitly knows the details or not.

I don't doubt for a minute that all the dirty tricks attributed to the Cruz campaign had his tacit approval.   But now the latest one backfired, and Cruz has made his senior communications director, Rick Tyler, fall on his sword and take the blame -- and resign.

Tyler apologized to Marco Rubio for putting out a false rumor that Rubio had mocked a Cruz staff member he saw reading the Bible.   Tyler says that the audio he based the claim on was indistinct and therefore he shouldn't have put the story out, since he couldn't back up his charge of what Rubio actually said.

Rachel Maddow, for one, spoke up for Rick Tyler, describing him as a nice guy.   He doesn't sound like a dirty-tricks kind of guy -- except in doing the job his boss wants.   Definitely, others in the business do not talk about him the way they talked about Lee Atwater and Karl Rove.

Here's the Rubio campaign's response, which puts it square on Cruz himself:

"Rick (Tyler) is a really good spokesman who had the unenviable task of working for a candidate willing to do or say anything to get elected.   There is a culture in the Cruz campaign, from top to bottom, that no lie is too big and no trick too dirty.   Rick did the right thing by apologizing to Marco.  It's high time for Ted Cruz to do the right thing and stop the lies."

One thing can be said about Donald Trump.   He does his own mud slinging rather than blaming in on the hired help.


PS:  On another front, Cruz has now flip-flopped from what he said just a month ago about deporting illegal aliens.   Then he rejected the notion of mass deportation and "jackboots" like in a police state.  "That's not how we enforce the law for any crime."

Now that he's falling behind, he told Bill O'Reilly on Fox News last night that he would definitely deport all 12 million undocumented people and wouldn't allow them to return.  O'Reilly asked if this would include those who simply overstay their visas.  Cruz replied:  "You better believe it.  Both Donald Trump and Marco Rubio would allow those 12 million people to become citizens.   I will not.That's the most extreme position any one of the candidates has taken.   This has been a bad day for Cruz's campaign;  he must really be worried. 

Monday, February 22, 2016

Is Hillary "inevitable" again ? ? ?

I don't get this sudden rush to say that Hillary Clinton is "inevitable" again, as one headline on Huffington Post suggested.   Another: "Nevada win bodes well for Clinton's national chances."

She won Nevada by about 600 votes.   Bernie Sanders won New Hampshire by 50,000 votes.   And the caucuses are terrible predictors of real preference, given the difficulties people go through to participate and the vagaries of turnout.

That small number doesn't tell us much -- except that the media is paving the way for Hillary at the expense to fairness to Bernie.


Was Scalia truly a "dedicated public servant"? Or was he a biased bully who had no self-awareness?

I did not like Justice Antonin Scalia, and it baffled me that he and the totally admirable Justice Ruth Bader Ginsburg were close personal friends.   He also is said to have reached out in kindness to Elena Kagan when she was first appointed to the court and took her duck hunting.   There must have been something likeable about him that I did not see.

As a member of the Supreme Court whose decisions I almost always disagreed with (at least those that were controversial and made the news), I thought he was a bigoted bully who had no self-awareness.   He famously said that he never let his emotions enter into his decisions about the law.   Perhaps he honestly believed that -- which is what convinces me that he had no self-awareness.   That is simply not true . . . about anyone.

That belief is probably what allowed him to justify not recusing himself from cases where he clearly had a conflict of interest.   Some who knew him say that he did at times adhere to a strict, originalist, textual reading of the Constitution, even when the resulting opinion was the opposite of what he would have liked. 

Maybe so, but I can also point to cases where he obviously should have recused himself, and didn't -- e.g., when he accepted a ride on Air Force 2 with VP Cheney to go on a hunting trip, at a time when a case against Cheney was coming up before the court. 

With prejudice, we tend not to see our own blind spots.    This was, in my opinion, startlingly true about Scalia.    What most helps combat that bias is knowing what your blind spots are and admitting them to yourself.   Scalia apparently never did.

Now is the time that I should pause and acknowledge that I am biased when it comes to Antonin Scalia (1) because I disagreed so thoroughly with his originalist and textualist ways of interpreting the Constitution, and (2) because he was a bigot and a blustering bully, characteristics I particularly abhor.  Because of my bias, I try extra hard, in writing about him, to make sure that my facts are correct and back up what I'm saying.

One particular disagreement I had with him was over his opposition to the recent SCOTUS decision that legalized marriage equality.   If Scalia had voted in that case consistent with some of his previous decisions, he should have voted in favor of it.   Instead he wrote a scathing denunciation of the majority opinion with which he disagreed, ignoring his own precedent votes that, in my view, rested on the same underlying constitutional principle.

This week, I have tried not to rejoice in the death of another human being, but I do agree with Clarence Darrow, who said:

"I have never killed any one, but I have read some obituary notices with great satisfaction.”