Implications Of The Death Of Supreme Court Justice Antonin Scalia

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Supreme Court Justice Antonin Scalia was found dead at a Texas ranch where he was staying while on a hunting trip at age 79. He was appointed to the Court by Ronald Reagan in 1986. His conservative rulings have had a profound, and negative, effect on the country during that time.

The legal and political ramifications are likely to be enormous. The next several months could be dominated by a fight over confirmation of Obama’s appointment, likely expanding the range of issues which the presidential candidates must discuss over the next several months. Voters might think more about issues such as reproductive rights and voting rights, which could be greatly influenced by the balance of the court, during the election year.

Republicans might try to prevent any Obama appointee from being confirmed hoping that a Republican could be elected an make the next choice. Such obstructionism might also backfire against the Republicans, along with demonstrating how many of their views are not accepted by a majority of Americans. It is also possible that Democratic Senators will block right wing choices should there be a Republican president in 2017.

For the current year (and possibly beyond) this means one less conservative vote on matters the Supreme Court is now considering, including  abortion rights,  affirmative action, and another challenge to Obamacare. I also wonder to what degree Scalia was able to influence any swing justices to side with the conservatives. There is also the possibility of some matters coming down to a four to four tie.

The Washington Post had an article in December suggesting that  tie votes on the court, due to a vacancy, will favor liberals, even if the author doesn’t seem happy with that prospect:

Thanks to a wealth of recent Democratic appointments on the lower courts, letting the Supreme Court go down to eight justices would favor liberals. Conservatives wouldn’t like the regime of liberal rulings that would govern in most of the nation without Supreme Court oversight. And the prospect of liberal dominance may actually stiffen the spine of the historically more accommodating Senate Democrats…

A Supreme Court vacancy would favor liberals, because an eight-member court would often divide 4 to 4, affirming the decisions of the predominantly liberal lower courts.

Ties would be most common if the vacant seat belonged to swing voter Kennedy. If Scalia were the one to leave, Kennedy’s conservative tilt would sometimes generate the ties, barring the occasional walkabout from Chief Justice John Roberts. And if Ginsburg or Breyer left, Kennedy would side with the three remaining liberals often enough to sometimes tie the court in important cases. In addition to his much-touted vote for same-sex marriage in Obergefell v. Hodges, Kennedy has voted with the liberals in civil rights and environmental cases, to rein in partisan redistricting and to grant Guantanamo prisoners the right to challenge their detention.

A tied Supreme Court traditionally issues a per curiam, or unsigned, decision affirming the ruling of the lower court. So under an eight-member court that regularly produced split decisions, each circuit would be like a little Supreme Court of its own. Obama has overseen a significant transformation of the federal courts, with nine circuits now dominated by Democratic appointments and only four by Republicans. On really important cases, the circuit courts are likely to meet en banc, with most or all of the judges sitting, meaning raw numerical dominance will always matter.

The 5th, 6th, 7th and 8th circuits, where conservative decisions would stand in the case of Supreme Court ties, mostly cover red states in the South and Midwest. Only some of the Great Lakes states are caught offsides. Meanwhile, the blue states on the coasts, along with purple Western states such as Colorado, are in liberal circuits. But here’s the kicker: Since most of the circuits are controlled by liberals, much of the conservative heartland is marooned in blue circuits. Arizona, Idaho and Montana are in the much-reversed liberal 9th Circuit. The entire Southeast, from Virginia to Florida, is covered by two circuits liberalized by Obama appointees. One liberal circuit, the 10th, has just one reliably blue state, New Mexico.

Update: Mitch McConnel says that a new justice should not be chosen until after the election.  SCOTUSbLog has more on cases currently under consideration. President Obama is about to speak as I am typing this, and is expected to say he will be nominating someone despite GOP objections.

Lacking A Message, Clinton Again Relies On Misinformation In PBS Debate

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At the PBS Democratic Debate Hillary Clinton recycled some old lies about Sanders, and created some new ones. I’ll debunk some of each. The full transcript can be found here.

An early point of contention between the candidates was over health care, with Clinton falsely claiming that “before it was called Obamacare, it was called Hillarycare.” No, actually Hillarycare was a seriously flawed plan with major differences from Obamacare.  Making matters worse, Hillary got Bill to agree to veto any other health care proposals. The Republican counter proposal was far closer to Obamacare, although, not surprisingly, it was friendlier to the insurance industry. Clinton kept us from getting either something close to Obamacare, along with any other Democratic proposal. She was hardly a progressive who gets things done.

Clinton continued to portray Medicare For All as eliminating other plans while ignoring all of its advantages. Although single payer is far less expensive than our current system, Clinton claims we would “actually be worse off than they are right now.” How could we possibly be worse off if we no longer have to pay towards the corporate profits of the health insurance industry, not to mention its huge infrastructure? How could we possibly be worse off than with the current high premiums on the individual market, which still leave us with astronomical deductibles? Clinton talks about this as starting over, but Medicare for All is actually just expansion of a highly successful program.

They next disagreed over expansion of Social Security as Sanders and most progressive Democrats advocate. Slate discussed this further in an article entitle Clinton’s Social Security Plan Is a Little Hazy. And Sanders Called Her Out on It.

Clinton tried to hide the major differences in how their campaigns are funded in claiming, “I’m very proud of the fact that we have more than 750 thousand donors, and the vast majority of them are giving small contributions.” That is probably why I keep getting emails from the Clinton campaign asking for a $1 donation. By asking for $1 they can pad the numbers. The real source of Clinton’s donations can be seen from how the DNC just rolled back their limitations from lobbyists. It is just one more way in which the DNC is acting to help Clinton, and smelling a lot more like the RNC.

Sanders pointed out the difference:

What we are talking about in reality is a corrupt campaign finance system, that’s what we’re talking about. We have to be honest about it. It is undermining American democracy.

When extraordinarily wealthy people make very large contributions to Super PACs, and in many cases in this campaign, Super PACs have raised more money than individual candidates have, OK? We had a decision to make early on, do we do a Super PAC? And, we said no. We don’t represent Wall Street, we don’t represent the billionaire class, so it ends up I’m the only candidate up here of the many candidates who has no Super PAC. But, what we did is we said to the working families of this country, look, we know things are tough, but if you want to help us go beyond establishment politics, and establishment economics, send us something. And, it turns out that up until — and this has blown me away, never in a million years would I have believed that I would be standing here tonight telling you that we have received three and a half million individual contributions from well over a million people.

Now, Secretary Clinton’s Super PAC, as I understand it, received $25 million dollars last reporting period, $15 million dollars from Wall Street. Our average contribution is $27 dollars, I’m very proud of that.

When Clinton tried to dodge the issue, Sanders went on:

SANDERS: The people aren’t dumb. Why in God’s name does Wall Street… (APPLAUSE) But let’s not — but let’s not — let’s not insult — let’s not insult the intelligence of the American people. People aren’t dumb.Why in God’s name does Wall Street make huge campaign contributions? I guess just for the fun of it; they want to throw money around.

Why does the pharmaceutical industry make huge campaign contributions? Any connection maybe to the fact that our people pay the highest prices in the world for prescription drugs?

Why does the fossil fuel industry pay — spend huge amounts of money on campaign contributions? Any connection to the fact that not one Republican candidate for president thinks and agrees with the scientific community that climate change is real and that we have got to transform our energy system?

Factcheck.org also pointed out Clinton’s dishonesty in claiming that Sanders “took about $200,000 from Wall Street firms” through the Democratic Senatorial Campaign Committee. While Sanders did receive money from the DSCC, which hardly sounds like a crime, Factcheck.org pointed out that a relatively small percentage of the DSCC’s contributions came from Wall Street.

Sanders attacked Clinton regarding her views on regime change, including in Iraq and Libya. Clinton repeated her previous tactic of lying about Sanders’ record in bringing up resolutions he voted for which had nothing to do with overthrowing other governments by force in Iraq and Libya as Clinton advocated. As I discussed after the third debate, Politico fact-checked this and pointed out the resolution Clinton referred to was a nonbinding resolution “calling on Qaddafi to desist from further violence, recognize the Libyan people’s demand for democratic change, [and] resign his position.” This is far different from the promotion of the removal of Qaddafi by force which Clinton orchestrated, leading to catastrophic results. Similarly, the resolution regarding Iraq which Clinton keeps mentioning was to promote the move towards democracy in Iraq. Sanders supported economic sanctions and did not support the invasion of Iraq as Clinton did.

Clinton bragged about Obama hiring her to be Secretary of State but his was far more for political reasons than an endorsement of her judgment. Throughout her four years as Secretary of State, Clinton’s neoconservative advice was generally rejected (other for in Libya, where the policy was a failure). Clinton’s defense of her foreign policy views became even more bizarre when she embraced Henry Kissinger. As Sanders responded:

Where the secretary and I have a very profound difference, in the last debate — and I believe in her book — very good book, by the way — in her book and in this last debate, she talked about getting the approval or the support or the mentoring of Henry Kissinger. Now, I find it rather amazing, because I happen to believe that Henry Kissinger was one of the most destructive secretaries of state in the modern history of this country.

I am proud to say that Henry Kissinger is not my friend. I will not take advice from Henry Kissinger. And in fact, Kissinger’s actions in Cambodia, when the United States bombed that country, overthrew Prince Sihanouk, created the instability for Pol Pot and the Khmer Rouge to come in, who then butchered some 3 million innocent people, one of the worst genocides in the history of the world. So count me in as somebody who will not be listening to Henry Kissinger.

Clinton once again tried to make herself look like a great supporter of Barack Obama and make Sanders look like a constant critic. She falsely claimed that Sanders wrote “a forward for a book that basically argued voters should have buyers’ remorse when it comes to President Obama’s leadership and legacy.” This refers to the book Buyer’s Remorse–How Obama Let Progressives Down by Bill Press. The book begins with:

I speak as a  proud liberal.

I speak as a strong supporter of President Obama.

From there it does criticize Obama for letting progressives down, discussing both the positives and negatives of the Obama administration. Sanders does not have a forward (at least on my copy of the book) but there is a brief blurb on the back cover from Sanders:

Bill Press makes the case why, long after taking the oath of office, the next president of the United States must keep rallying the people who elected him or her on behalf of progressive causes. That is the only way real change will happen. Read this book.

Hardly the sort of near-treason which Clinton suggests. The next blurb on the back cover is from Robert Reich, the Secretary of Labor under her husband. Reich also recently wrote that, “Bernie Sanders is the most qualified candidate to create the political system we should have, because he’s leading a political movement for change.”

Clinton was also wrong when she said Sanders was “calling several times that he should have a primary opponent” in 2012, grossly exaggerated anything which Sanders did say on the subject. She totally ignored how she opposed Obama before she supported him. This not only includes th2 2008 primary battle, which included her campaign spreading the Reverend Wright smears, and other dirty tricks. Clinton was quite hostile towards Obama’s foreign policy views after she left office as Secretary of State, and was running against Obama’s policies earlier in the current campaign. She will turn on Obama’s legacy again should she find it politically expedient.

Clinton concluded in her closing remarks yet another smear, which Sanders could not respond to, that he was a single issue candidate. In this post alone there are multiple issues which separate them such as on the role of money in politics, their views on Medicare for All, Social Security reform, disagreement over embracing the legacy of Henry Kissinger, Clinton’s support for regime change in Libya as well as Iraq. Other issues which Sanders is running on also came up which I have not included here, such as ending the drug war and reforming marijuana laws. There are also many other differences on other issues which were not raised during the debate, such as substantial differences over climate change and on social/cultural issues.

While Sanders certainly concentrates on limited issues during the campaign for political reasons, he has demonstrated many reasons to support him on a variety of issues. In contrast, Clinton’s bright yellow jacket  (which I  think she borrowed from Curious George’s friend in the yellow hat) seemed to receive more attention than anything she had to say at the debate. Clinton’s problem is that she lacks any real message at all, failing to provide voters a reason to support her. Even many of  those who do support her are acknowledging this problem.

Update: Accusations Of Lying Dominate Republican Debate