The politics of the judiciary

Excellent column from EJ Dionne on Gorsuch.  The man is surely qualified, but he is disingenuous as hell about this (kind of like Roberts and his ridiculous and no-relationship-to-reality “balls and strikes” line).  EJ:

With a shrewdly calculated innocence, Judge Neil Gorsuch told a big fat lie at his confirmation hearing on Tuesday. Because it was a lie everyone expected, nobody called it that.

“There’s no such thing as a Republican judge or a Democratic judge,” Gorsuch said.

Actually, allow me to first mention that Gorsuch said “Democrat judge” on several occassions.  That’s how Fox News viewers talk, not genuinely non-partisan people.  That’s a hell of a tell.  Anyway…

We now have an ideological judiciary. To pretend otherwise is naive and also recklessly irresponsible because it tries to wish away the real stakes in confirmation battles.

The best scholarship shows an increasingly tight fit between the party of the appointing president and how a judge rules. It’s a point made in “The Behavior of Federal Judges ,” by Lee Epstein, William Landes and Judge Richard Posner, and also in research by Neal Devins and Lawrence Baum. [Just for the record, Lawrence Baum is a hell of a guy]

Face it: If partisanship and ideology were not central to Supreme Court nominations, Gorsuch would be looking at more years in his beloved Colorado. Notice that I referred to the Supreme Court seat as belonging to Garland, the chief judge for the U.S. Court of Appeals for the District of Columbia Circuit, nominated by President Barack Obama to replace the late Antonin Scalia. In an appalling act of extreme partisanship, the Republican-led Senate would not even give Garland a hearing.

It’s frustrating that so many minimize opposition to Gorsuch as merely the payback for Garland the Democratic base yearns for. This content-free way of casting the debate misses what’s really going on: Thanks to aggressive conservative jurisprudence, we have a Supreme Court that, on so many issues, continues to push the country to the right, no matter which party controls Congress or the White House.

The reason Republicans wouldn’t even let the moderately liberal Garland make his case is that conservatives who regularly denounce “liberal judicial activism” now count on control of the Supreme Court to get results they could never achieve through the democratically elected branches of government.

They could not gut the Voting Rights Act in Congress. So Chief Justice John G. Roberts Jr.’s court did it for them. They could never have undone a century’s worth of legislation limiting big money’s influence on politics. So the Citizens United decision did it for them.

Preach it, EJ!

And, while I’m at it, I’ve always hated “originalism” and “textualism” is they are as inherently subjective as any other interpretive framework, and I think particularly ill-suited for interpreting a 200+ year old document for the moderm world.  Thus, loved this Op-Ed from law professor Ken Levy:

Originalism is just one of the theories that Judge Gorsuch shares with the late Justice Antonin Scalia; another is its closely related cousin, textualism. Textualism says that when interpreting the Constitution, judges should confine themselves to the words of the Constitution. Originalism says that if the words are at all unclear, then judges need to consult historical sources to determine their meaning at the time of ratification, and the correct application of these words to new cases should clearly follow…

But Justice Scalia failed to realize that textualism is actually self-undermining. Nowhere does the Constitution explicitly state that textualism, no less originalism or any other method, is the correct theory of constitutional interpretation. Justice Scalia also failed to realize — or at least admit — that textualism and originalism rarely determine a unique outcome for constitutional questions…

The meanings of many words and phrases in the Constitution are not at all obvious. Examples include “right,” “unreasonable,” “probable cause,” “due process,” “excessive,” “cruel and unusual” and “equal protection.” Even if we could find clear definitions of these terms in a dictionary, current or historical, applying these definitions to cases that the founders did not anticipate only expands the range of ambiguity (and therefore interpretive possibilities).

I’m a big fan of Levy’s argument for principled pragmatism:

Contrary to Justice Scalia and his many disciples, there is a third way to interpret the Constitution, beyond textualism (and originalism) and pure subjectivism: principled pragmatism. Principled pragmatism says that judges should consider not only the constitutional language as the ratifiers interpreted it but also the constitutional language as we moderns interpret it, the structure of the Constitution as a whole, the overall purposes of the Constitution as stated in its preamble and — yes — the public policy consequences of each possible decision. Once these additional factors are taken into account, they may still point in the same direction as the ratifiers’ intent. But they may also point in a very different direction.

Anyway, Gorsuch will surely regularly rule in keeping with his own conservative ideological priors and use “originalism” to justify it.

AHCA in one amazing chart

From a new Urban Institute report via Chait:


I keep having various charts like this left up on my laptop when my 11-year old son gets on it and takes a look.  He is literally incredulous how anybody could be a Republican.  Even doing my best to be fair, he just cannot understand at all how this political party has any adherents except the very wealthy.  Then again, he’s also totally comfortable with minorities, empowered women, and gay people ;-).

No regrets

Some political scientists conducted a pretty interesting survey where they asked respondents if they would change their presidential vote if given the choice.  Among the Trump voters, very few regrets.  Via the Monkey Cage:

Who would vote differently?

On the next screen, we asked everyone, “Suppose you could go back in time and vote again in the November election. What would you do?”

Respondents were presented with the same choices — Trump, Clinton, Stein, Johnson, someone else, or not vote at all. Of the 339 poll participants who originally voted for Trump, only 12 (3½ percent) said they would do something different.

Only three individuals (fewer than 1 percent of Trump voters) said that, could they go back in time, they would cast their vote for Clinton. Seven said they would vote for one of the minor-party candidates.

When we asked why, most regretful Trump voters pointed specifically to his performance as president. (Misspellings are original.)

“He has moved kinda fast with the immagration ban, and abortion law.”

“I don’t like his decisions so far.”

“Trump’s actions since the inaugeration.”

“… Trump cannot get out of his own way. He won’t stop running his mouth and has no humility.”

These sentiments echo regrets highlighted in social media. But they are too few to conclude that Trump’s electoral coalition has somehow eroded. Moreover, of the already small number of Trump voters expressing regret, only one in four would have shifted their support to the Democratic nominee.

Cannot say I’m all that surprised.  As I’ve said time and time again, President Trump = Candidate Trump.  He’s horrible, but there’s not actually any surprises in it.  Trump voters either A) knew he was horrible and were willing to overlook it for tax cuts and the Supreme Court, or B) actually like the horribleness (and suffer from varying degrees of delusion as to how grossly incompetent he is).

Also, therefore, worth pointing out, that, overall, Trump remains quite popular among Republicans.  Drum with a nice graph:

This has been and remains the key dynamic.  Don’t expect much to change until this does.

Just win, baby

So, the Republicans in the House are doing their damndest to pass health care legislation that most of them hate (many, because they think it is still too generous to poor people).  And Trump is pushing really hard for it.  Of course, Trump repeatedlyChait promised better health care for less money for his supporters and this bill is the exact opposite (as I’ve mentioned many times, health care has always been about political expediency for Trump; his true passion is xenophobia).  But, clearly, Trump is so desperate for a “win” that he’s going to the mattresses for objectively bad legislation (literally nobody from anywhere on the political spectrum considers this a good and workable version of health care policy) that directly contravenes his promises.  on some of the illogic behind this:

Overpromising is common for politicians. But Republicans didn’t merely stretch the truth. They have promised something diametrical to their actual agenda. Republican plans would reduce coverage subsidies, foisting people onto cheaper plans with much higher deductibles. All the while, they promised the precise opposite. Whatever they do, they are going to break their promises…

2. Losing will embolden our enemies. “[Trump] told us if we don’t pass this bill on Thursday, it will put everything in jeopardy that he wants to do, his agenda,” Republican Representative John Duncan of Tennessee told The Hill. “If we are not able to move forward with health-care reform, it endangers tax reform,” Representative Bill Flores of Texas, a former chairman of a House conservative caucus, tells Sahil Kapur. “The folks that were able to tear this down would feel like they’re empowered to tear the next big project down.” This is, essentially, the domino theory of legislation. But, really, think about it rationally: The folks who are tearing down Trumpcare are fellow Republicans in Congress. If Trumpcare fails, are they going to turn against tax cuts? …

4. We’ll lose Congress if we fail. “If we get this done, and tax reform, [Trump] believes we pick up ten seats in the Senate and we add to our majority in the House,” says Republican Representative Chris Collins of New York. “If we don’t get it done, we lose the House and the Senate.” Trump has reportedly emphasized the same point to his party.

It is a bit strange to argue that a party can consolidate or even expand its base of support by passing a deeply unpopular bill. To be sure, if Republicans believe that the public has simply been misled about its bill, and will like the result once it has been enacted, they might have reason to think a vote could help them in the long run. But it is almost impossible to find a policy advocate of any ideological persuasion who believes that.

I think it still more likely than not this passes this House, though that’s far from a sure thing.  But, at this point, I truly am wondering what possible legislation pulls off 218 Republican votes in the House and 50 in the Senate.  Whatever legislation does manage to pull that off, will almost surely be abysmal from a cost/benefit public policy perspective.

The motivating factor behind Obamacare repeal

This chart from CBPP (friendly version and commentary via Drum) is pretty damn telling:

You know what really gets me? Even among the millionaires, repeal will only net them about $50,000. That’s like finding spare change in the sofa cushions for this crowd. Is clawing back a few nickels and dimes really worth immiserating 20 million people?

Well, there you go, that’s the other motivating factor.  Damn if their tax dollars are going to subsidize health care for lazy poor people!

Trump may not be “guilty” of anything on Russia, but he’s sure acting like it

Good post from Brian Beutler.  Whatever went on with Trump campaign officials and the Russians, this is decidedly not how innocent people typically act.  Of course, there’s not much that’s typical about Trump, so maybe he only knows to lash out when attacked, period, but it’s sure not a good look.  Beutler:

It is hard to say, exactly, how a presidential administration should behave when it has been the beneficiary, wittingly or unwittingly, of foreign interference on its behalf. The U.S. intelligence community has already concluded that the Russian government sabotaged Hillary Clinton’s campaign to bolster Trump’s candidacy. Even under the most innocent of circumstances, Trump and his senior aides would find themselves in the awkward position of having to contend with the role that dirty tricks played in their rise to political power.

But the defensive, contentious posture they have adopted—marked by obfuscation, deflection, and wild counterpunching—doesn’t call to mind the temporary embarrassment of a political team benefiting from the interference of some noxious but unaffiliated entity, like the Swift Boat Veterans for Truth that smeared Democratic nominee John Kerry in 2004. They’re acting like cornered animals. And though Trump’s response to these developments is dressed up with the trappings of the presidency, including a White House press secretary who speaks on his behalf every day, it bears all the hallmarks of his standard reaction when his unsavory associations come back to bite him. This is vintage, guilty Trump…

The pattern was well established before Trump had the machinery of the White House behind him. He devoted his official Twitter feed on Monday afternoon to posting deceptively edited and summarized video clips from the Intelligence Committee hearing, to make it appear as if Obama were the real villain, that Comey’s testimony had exonerated him, and that Russians didn’t meddle in the election when, in fact, the exact opposite was true.

It is easy enough to imagine a version of events in which the Russian government determined its preference for Trump over Clinton and consequently sought to influence the outcome of the election in complete isolation from the Trump campaign, like a kind of rogue, sovereign, lawbreaking super PAC. If at bottom, Trump had confidence that his associates never colluded improperly or illegally with the Russian effort to sabotage the election, he might see it as in his interest to let an investigation proceed unencumbered.

You send your spokesman out to make an ass of himself, and pretend your closest advisers were mere hangers on, when you’re afraid of what that investigation might turn up. [emphasis mine]

I still think it entirely possible, if not likely, that Beutler’s penultimate paragraph is correct, but whether it is or not, Trump is sure acting guilty.


Photo of the day

Whoa– had no idea of the devastating plains wildfires till I saw this NYT article about all the dead cattle.  But CNN’s story with the most arresting photo.

A cow grazes by a wildfire near Protection, Kansas, early Tuesday.

A cow grazes by a wildfire near Protection, Kansas, early Tuesday.

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