Supreme Court

American Politics in Two Quotes: Or, why Congress is Broken

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Two quotes. That’s all it takes to effectively summarize the state of American politics. Two quotes. No more is needed to convey the partisan nature of Congress. Two quotes to express how partisanship places politics first and governing second.

Two quotes.

First,

It is a president’s constitutional right to nominate a Supreme Court justice, and it is the Senate’s constitutional right to act as a check on a president and withhold its consent.

Second,

Neil Gorsuch will be confirmed this week. How that happens really depends on our Democratic friends. How many of them are willing to oppose cloture on a partisan basis to kill a Supreme Court nominee.

In the first instance, Senate Majority Leader Mitch McConnell (R-KY) is justifying his refusal to allow a straight up or down vote on Supreme Court nominee Merrick Garland.

In the second instance, Senate Majority Leader Mitch McConnell (R-KY) is addressing a potential Democratic filibuster of Supreme Court nominee Neil Gorsuch.

Two quotes. Two sentiments. One politician.

The difference? A newly-elected Republican president versus a lame duck Democratic president.

American politics in two quotes.

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5 Reasons to Vote for Donald Trump: Or, It may Actually be Worse if Trump Loses

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Public opinion polls show a close race between Hillary Clinton and Donald Trump. The chances of a Trump victory are the highest they have been since the middle of September. Fifteen percent of potential voters are still uncertain as for whom they will cast their vote come November 8th. These undecided voters lean decidedly Republican as well. Furthermore, there is reason to believe support for Donald Trump is not adequately captured by public opinion polls. And the size of Trump’s rallies may mean something for his electoral turnout. The presidential race may be closer than many continue to forecast. But it is still forecast for Hillary Clinton with less than a week before Election Day.

However, for those undecided voters or for those who are still unsure about voting for Hillary Clinton, there are five reasons why it may be in America’s best interests to elect Donald Trump.

  1. Trump’s candidacy has highlighted cracks in the Republican Party. These cracks threaten to become much more should he lose. Speaker of the House Paul Ryan (R-WI) has been under intense scrutiny for his refusal to endorse Donald Trump and faces a backlash in the House even if Trump wins. If Trump loses, however, his tenuous hold on House leadership may necessitate working with the ultra-conservative wing of the House, who don’t want Ryan to cooperate with Democrats. At all.
  2. Should Hillary Clinton win the election, Representative Jason Chaffetz (R-UT), chair of the House Oversight Committee, has pledged to spend years and millions of taxpayer dollars on Congressional hearings to investigate Clinton.
  3. Senator John McCain (R-AZ), Senator Ted Cruz (R-TX) as well as other Republicans have indicated the Republican-controlled Senate may block any and all Supreme Court nominees put forth by Hillary Clinton, indefinitely leaving a vacant Supreme Court seat.
  4. Donald Trump has convinced many of his supporters that the election is rigged and he is the Republican Party’s last chance at winning an election. Due at least partially to such rhetoric, a significant number of voters believe the election will be stolen from Donald Trump and a portion of these Trump supporters may protest the election results if he loses.
  5. Additionally, various militia groups have pledged to support these protests with violence if necessary.

In other words, things will be worse. There is a preemptive pledge to not allow Hillary Clinton to govern and to barely acknowledge the legitimacy of her victory and her office. For the majority of Americans who wish to see change in American politics, there will be more of the same. Partisan gridlock and a divided American public. Politics as usual, only more so.

Realistically, if Donald Trump loses on November 8th it may change nothing. November 9th may just be another day. But what if it isn’t?

Why the Republican Party needs to win the election

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Virtually every pollpundit and prediction shows a massive, staggering loss for Donald Trump on November 8th. Republicans are also likely to lose both the Senate and the House of Representatives. The Republican Party is increasingly at odds with Republican voters. Republican voters are increasingly dissatisfied with Republican leadership. A process begun long before this election cycle. But Republican voters are only one small piece of the problem. American public opinion as a whole has been moving away from the Republican Party platform. A more liberal America has been moving away from Republican positions on abortion, tradegun control and marriage. Two-thirds of Americans view the Republican Party unfavorably. Republicans are losing the demographic and partisan battle.

The GOP is fighting for its political and popular survival. Numerous GOP analysts believe the Republican Party as currently constituted will soon cease to exist. It may well split in two, a center-right party which approximates the current GOP and an “alt-right” party which caters to those who express more extreme positions on issues such as immigration, trade and U.S. foreign policy. Some current Republican leaders have turned their attention and efforts away from Donald Trump and towards the states in an effort to retain control of the House and some semblance of GOP stability. But some feel it is already too late. The damage has been done, win or lose.

This is one reason why Republicans who had previously denounced Donald Trump are coming back. Donald Trump needs to win and will say anything in order to make that happen, even if it hurts Republicans down the ticket and in the long-term. So Republicans need him to win to rescue this election, even if they cannot reign him in and disagree with his proposed policies. Most importantly, Republicans need Donald Trump to win so they can control the Supreme Court.

When Supreme Court Justice Antonin Scalia unexpectedly died in February the GOP lost a conservative stalwart who believed in a literal reading of the United States Constitution and argued in favor of those positions Republicans have traditionally held most dear. For the past 8 months Senate Republicans have refused to consider any Supreme Court nominee put forth by President Obama, their argument being that in final year of his presidency Obama has no right to appoint a new Justice. Popular opinion demands that appointment wait until a new president has taken office.

While a potentially noble, if misguided and untenable abdication of their duty to advise and consent, this is not the real reason for their refusal to hear nominees. Senator John McCain (R-AZ), in a recent radio interview in Philadelphia, clarified the Republican position on Supreme Court nominees saying, “I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up. I promise you.”

It was later qualified by a spokesperson from McCain’s Senate office who said Senator McCain would review the record of any nominee put forth by Hillary Clinton, but she “has a clear record of supporting liberal judicial nominees”. In other words, Senate Republicans have no interest in approving the appointment of a liberal Supreme Court justice. Or, perhaps more likely, three liberal Supreme Court justices.

Justices Ruth Bader Ginsburg (age 83), Anthony Kennedy (80), and Stephen Breyer (78) could all decide to retire during a Clinton presidency. This means Hillary Clinton would be able to replace four out of nine justices, two out of four conservative justices, potentially altering the balance of the Court for decades. Hopes for conservative Court rulings would be dashed. Any future Republican-friendly changes to Roe v. Wade would similarly be scuttled. Republicans could lose no only the White House and Congress but also the potential for the Supreme Court to overturn liberal legislation.

For a Republican Party rapidly losing favor both within and without, an election which promises to decrease Republican power in Washington and much mending needing to be done in order to secure the future of the GOP, the Supreme Court may represent the last bastion of Republican power. There is no guarantee Donald Trump would appoint a conservative justice viewed favorably by Senate Republicans, but in their view they must believe he would, or at least is more likely to do so than Hillary Clinton.

Donald Trump must win so a conservative-leaning Supreme Court can stand.

 

Supreme Court Justices are people too, they have political opinions

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In the midst of the Republican National Convention with numerous politicians, pundits and C-list celebrities focusing their partisan animus on Hillary Clinton and all manner of things Democrat and liberal it’s important to take a look back on something which to this point has received very little attention at the RNC. The comments of Supreme Court Justice Ruth Bader Ginsburg last week regarding her impression of then-presumptive Republican nominee Donald Trump quickly escalated to controversy, then diminished following her apology and to this point has seemingly dissipated beyond editorials on the proper political place of the Supreme Court. Some have criticized Justice Ginsburg for her blunt expression of dismay at the possibility of a Trump administration, some even calling for her resignation. Others have defended her comments, even if acknowledging they were poor judgement. The only thing on which most seem to agree is that it is no surprise the Justice breaking this political/judicial barrier was Ginsburg. But really, are the comments truly a big deal if the barrier is of false construction?

To quickly review, three separate times early last week Justice Ginsburg publicly discussed her view of the presidential race, most importantly and controversially, her view of Donald Trump. She declared she “can’t imagine what the country would be — with Donald Trump as our president” and didn’t “want to think about that possibility”, calling him “a faker” with “an ego” who “has no consistency about him”. Last Thursday Ginsburg apologized, saying her remarks were “ill advised” and declaring “judges should avoid commenting on a candidate for public office”. Perhaps her words were imprudent and inappropriate given her position on the bench. However, notably she apologized for making the comments, not for the comments themselves. This, at least implicitly, establishes her on-going apprehension at the possibility of a Trump presidential victory. So why apologize except to satiate those who believe in an apolitical Court? In other words, it was a political apology. And it’s not like the politics start there.

To begin, to declare a position subject to Senate confirmation apolitical is a bit disingenuous. It may be argued that these confirmation hearings are to delve into the professional qualifications and personal past of the nominee. However, this belies the relatively recent practice (since 1955) of questioning nominees on their judicial views. Furthermore, since 1975 the median number of days from nomination to final Senate vote is 71 days with the median hours questioned being 20. Why the extensive period to judge the legal qualifications of the nominee? Why question their judicial views unless there is concern over political leanings? Why do Republicans bemoan the liberal tendencies of the court, Democrats express concern over a conservative Court and pundits decry the need for a balanced Court?

In much of the media analysis of Ginsburg’s comments it is argued that people don’t so much believe justices are actually apolitical so much as they need justices to be apolitical. Therefore, Ginsburg didn’t deprive people of the belief of apolitical Justices so much as fractured peoples’ perception of an independent judiciary. But independent of what? The Supreme Court is independent of the other branches of government, not from politics. If this were true there wouldn’t be calls of “activist” judges or outcry from Congress following the decision of the Supreme Court to not overturn aspects of Obamacare. The Supreme Court is conceived to be independent of outside political machinations (although this is not always true), but it cannot be divorced from the internal political judgements of individual Justices.

A Segal-Cover score is an attempt to measure the “perceived qualifications and ideology” of Supreme Court justices. The data available cover all nominees from 1937 to 2010 and the scores of these nominees have been found to be strongly correlated with the subsequent votes of the justices. Because the scores are based on newspaper editorials written prior to a nominee being confirmed the Segal-Cover measure is considered a reliable, independent measure of the ideological values of Supreme Court justices. Looking at the data there is a wide range of ideological scores (0-1, most conservative to most liberal) for those confirmed nominees, ranging from 0.000 for Antonin Scalia to 1.000 for a few nominees, with middle-range values across the spectrum in-between. If these nominees were confirmed it is probably a fair assumption as to their legal qualifications. But if the assignment of the Supreme Court is merely to make legal decisions, why is there ideological heterogeneity? For that matter, why does precedent get overturned?

In short, the law is subjective. This notion is manifested in the very existence of the Supreme Court. Article III of the United States Constitution states the Supreme Court, and lower federal courts, have the power to interpret the law outside the influence of other branches of government. This need to have independent arbiters with the ability to define what laws, especially the Constitution, mean denotes the importance of individual judgement in jurisprudence. Many scholars argue that the nature and purpose of the Constitution is to be a “living document”, to be appropriately interpreted and applied according to the needs of the time. Thereby, the law changes. And the very nature of the Supreme Court, in interpreting the Constitution, in the types of cases taken by the Supreme Court, in the publicized opinions written by justices, to the fact that there have historically only been nine justices, determines the consequence of a justices individual judgement on how the law changes.

So what determines that individual judgement? Most simplistically, judgement and decision-making is composed from an innumerable combination of individual experiences, various sociological factors, geography, personal background, genetics and numerous other factors which combine to form associative pathways in the mind, beginning at a very young age, if not before birth. These pathways are then both emotional and rational, to the point where what an individual may consider “rational”, may consider “logical”, what decisions result in the greatest “utility”, cannot be disassociated from emotional considerations. As individuals become older and more educated these pathways tend to effectively crystallize, new information becoming associated with existing pathways and integrated into existing opinion. In other words, opinions don’t change over time, instead they are largely reinforced through the sheer power of the human mind. As a result, it may be expected that Supreme Court nominees come into the process with well-established prior beliefs, both politically and legally. But as demonstrated by the Segal-Cover scores as well as the general lack of effect of gender, race, educational background or religious views on jurisprudence, the personal cannot be distinguished from the legal. No one factor or even two determine an individual’s belief system and attitudes, so justices who share a similar background or race or education do not necessarily share the same beliefs and attitudes, which is reflected in their interpretation of the law.

What does this mean in terms of Ruth Bader Ginsburg, the Supreme Court and politics? First, the law is political. Justices have personal belief systems and political attitudes much like anyone else, only much stronger in all likelihood than the general public. These beliefs and attitudes naturally have an effect on decision-making. The nature of the Supreme Court in hearing controversial cases and cases where the law may be murky determines that these beliefs and attitudes will have a greater bearing on their decisions. Second, very few, if any, credible sources have argued that Ginsburg’s mind has simply gone, that she is no longer able to do her job as the result of cognitive decline. Many have pondered the consequence of her comments if another case such as Gore v. Bush comes before the Court, now involving Donald Trump. But if her mind has not slipped and she may still be considered a legal expert, why would her legal opinion be questioned? Does giving voice to an opinion held prior somehow diminish cognitive capacity? Or did Ginsburg’s opinion of Donald Trump not actually come into existence until she spoke those words? When she presided over Gore v. Bush did she not have an opinion on either candidate? It is absurd to believe a justice’s personal opinion of an individual influences their ability to interpret the law. However, it is also absurd to believe that interpretation isn’t influenced by the individual justice.