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Everyone is Strategizing about Scalia's Replacement

Yesterday, we had three long items about the political implications of the unexpected death of Supreme Court Justice Antonin Scalia. If you missed them, you might want to check them out first.

Within 24 hours of Scalia's death, the strategists for both parties are trying to figure out what helps them most. President Obama has already said he will nominate someone to fill Scalia's seat. The big question is what kind of a person. Here are some of the names that have been floated so far. For your convenience, we have subtly sorted them on age.

Name	Age	Current job	Notes
Cory Booker	46	NJ senator	Would the Senate really block a sitting senator?
David Barron	48	Judge on the 1st circuit	Served in Obama's Justice Dept.
Paul Watford	48	Judge on the 9th circuit	Stellar black jurist
Sri Srinivasan	48	Judge on the D.C. circuit	Indian-American; was approved 97-0 by Senate
Jacqueline Nguyen	50	Judge on 9th circuit	Would be first Asian-American on the Court
Jane Kelly	51	Judge on the 8th circuit	Was approved 96-0 and Sen. Grassley likes her
Kamala Harris	51	CA attorney general	Black and currently running for Senate
Patricia Millett	52	Judge on the D.C. circuit	Controversial; was approved by Senate 56-38
Amy Klobuchar	55	MN senator	See Booker
Loretta Lynch	56	U.S. Attorney General	Would be first black woman on Court
Pamela Karlan	57	Stanford professor	Described herself as: "Snarky, bisexual, Jewish woman"
Sheldon Whitehouse	60	RI senator	See Booker
Merrick Garland	63	Chief judge on D.C. circuit	A moderate

A major strategic decision Obama must make, which has huge implications for the election, is what kind of nominee he picks. If he picks a moderate or a sitting senator, Senate Majority Leader Sen. Mitch McConnell (R-KY) and Senate Judiciary Committee Chairman Sen. Chuck Grassley (R-IA) will be under tremendous pressure to accept the nomination lest the Democrats turn the whole campaign into a fight about Republicans refusing to govern. For Obama, the downside is getting a less liberal nominee than he might want. On the other hand, if he picks a fairly liberal nominee, the nominee certainly won't be approved.

Another possibility for Obama is to play the long game. Simply concede there is no way he can get a nominee acceptable to himself confirmed and hope Clinton or Sanders wins the election. The strategy here would be to pick a nominee who, while being rejected, would maximize the chances of the Democrats taking back the Senate. To go down this path, he would look for a nominee whose credentials were so strong that the Senate's expected rejection (implicitly or explicitly) would have "PARTISAN POLITICS" written all over it. It would be mighty hard for the Republicans to explain why not one of them objected to Srinivasan or Kelly for the nation's second highest court but couldn't stomach him or her for the highest one. Kelly is three years older than Srinivasan but has the added attraction of making the expected rejection offend women. Having U.S. Attorney General Loretta Lynch or California Attorney General Kamala Harris be rejected would be a twofer: it would energize both blacks and women to hate the Republicans and be sure to vote.

From the Republican perspective, just saying "no" is a huge gamble. Not only could it hurt during the campaign, but the result of saying no could be Hillary Clinton or Bernie Sanders proposing a far more liberal nominee to a Democratic Senate and getting him or her approved. On the other hand, Rubio and Cruz are already on record saying the Senate should block any nominee, no matter how qualified. It is high-stakes gambling for both sides here. (V)

Looking at Some Supreme Court Appointment Hypotheticals

The current drama surrounding Antonin Scalia's replacement is a byproduct of two developments that the Founding Fathers did not foresee when they crafted the Constitution nearly 240 years ago. The first of these, of course, is the rise of political parties. Certainly, the Framers were aware of political parties—the country they were leaving had them, after all—but they hoped (perhaps naively) that Americans would not follow in the footsteps of the British. Washington, et al. were quickly disappointed in that regard; the United States has only had a party-less system for about a dozen years since the Constitution went into effect (roughly 1789-1792 and 1818-28)

The second unforeseen development is the enormous importance the Supreme Court has assumed in the American system of government. Civics classes across the land offer lessons on the American system of "checks and balances," with the executive, legislative, and judicial branches all keeping an eye on one another. In reality, however, nearly all of the checks and balances the Founders designed were between the legislative and executive branches; for them, the judicial branch was essentially an afterthought. Among the evidence of this is the fact that the Constitution devotes 2,388 words to laying out the structure and functions of Congress, and 1,049 words to the presidency and executive branch, but a mere 391 words to the judiciary. Article III does not even spell out the specific structure of the Supreme Court (that was done in the Judiciary Act of 1789), and the Court did not truly become a "check" on the other two branches until the 1803 case Marbury v. Madison.

As a consequence of the Constitution's vagueness on most points related to the Supreme Court, most practices regarding the Court—including how appointments are handled—are governed by a mix of Congressional acts, custom, and political expediency. This means that there is a fair bit of room for maneuvering while still remaining within the bounds of the law. Yesterday, we discussed the two most probable maneuvers that might take place—an extended filibuster by Republicans, and a recess appointment by President Obama. What about a few less-probable maneuvers, though?

If the Democrats win the Senate but lose the presidency, could they ram through a nominee in the seventeen days between the start of the new session of Congress (January 3) and the inauguration of the new president (January 20)?

Yes, but they would need to have 51 Senators to do it (in other words, 50 plus Joe Biden to break ties is not enough). In the event that the Democrats have 51 members present for duty, they would have a quorum. Then, they would elect a majority leader, presumably Sen. Chuck Schumer (D-NY). Schumer would declare that the filibuster is a "constitutional question," and that its validity is in question. Though it requires 67 Senators to change a Senate rule, it only requires a simple majority to decide questions of validity. The 51 Democrats would vote that the filibuster is invalid, and would then be free to proceed to a vote on the President's nominee. This, as political junkies know, is called the "nuclear option."

Historically, both parties have been reluctant to use the nuclear option because they want the filibuster to be available when they are in the minority. There's also the fact that the opposition will levy accusations of "parliamentary trickery" and "political game playing," but in this case the GOP would have a hard time with that line of attack after a year of holding up a Supreme Court nominee.

What makes this particular scenario unlikely in 2017 is that a Republican president plus a Democratic Senate is highly improbable. If the blue team loses the White House, they're going to lose the Senate, too.

Could Barack Obama nominate himself to the Supreme Court?

Yes. While the Constitution has very specific requirements for members of Congress and for the president, it has none for Supreme Court justices. Obama can appoint himself, if he wants. There is no requirement that a justice hold a law degree, so he could appoint Bernie Sanders, or his friend and advisor David Axelrod, or—if he wants to increase the sex appeal of the Court—George Clooney. There are no limits related to citizenship or place of birth, so Madeleine Albright or Henry Kissinger or Ted Cruz would be in the clear (in fact, six justices have been foreign born).

To the extent that any Obama nominee might be "disqualified," it would be by restrictions not specifically addressed to the judiciary. There are anti-nepotism rules governing federal jobs, so appointing Michelle Obama (who wouldn't be a bad choice) might be tricky. However, these rules tend to be overlooked for high-level appointments (think: JFK appointing his brother as attorney general). The Constitution also has a clause, called the ineligibility clause, that restricts members of Congress from accepting appointment in other branches of government while their term is underway. But because this is mainly intended to stop members from giving themselves a raise on the way out the door as they accept a new job, the clause only comes into effect if the pay for the new job has been raised by Congress during the current term. The Supreme Court's pay rate has not been changed since 2009, so there's no issue right now, and—as with the nepotism rules—the ineligibility clause tends to be overlooked with high-level appointments (as it was, for example, in 1937 when Hugo Black voted to increase justices' pensions, and then resigned his Senate seat to accept appointment to the Court.)

If Obama did nominate himself, he'd have to resign the presidency, right?

As a practical matter, yes. He can hardly do both jobs at the same time. However, it would not actually be required for him to do so. While the ineligibility clause can prohibit a member of Congress from being employed by the other two branches of government, there is no specific prohibition about crossover between the executive and judicial branches, and indeed, U.S. Marshals work for both.

Do the Republicans have any options available besides the filibuster they're planning?

If Senate Majority Leader Mitch McConnell (R-KY) were to call his best legal minds into his office, and to ask them to put all options on the table, they might come up with a couple of possibilities, but it wouldn't be pretty.

One option, specifically granted by the Constitution, would be to impeach one of the liberal judges and remove them from the Court. This would only be a short-term fix, geared toward giving the conservatives a 4-3 majority for this year's decisions. It would also be very difficult to pull off. Only one justice has been impeached—Associate Justice Samuel Chase, in 1805—and he was not removed, as his crimes were incompetence (he often showed up to work drunk) and expressing politically unpopular opinions (he was a Federalist in a time when Democratic-Republicans were ascendant). The precedent established was that justices can only be removed for committing a crime. So, tossing out Sonia Sotomayor, Elena Kagan, Ruth Bader Ginsburg, or Stephen Breyer would require finding evidence that they committed a federal crime. Presumably, they have not done so. Also, while impeachment is done by a simple majority of the House, conviction requires 2/3 of the Senate.

The other possibility (and this would be a true "nuclear" option) would be rooted in the fact that the structure of the Court is determined by Congressional acts. The Court started with six justices, expanded to seven in 1807, nine in 1837, and ten in 1863. In 1866, Congress declared that the next three justices to retire would not be replaced, and the next two to leave weren't, so the Court shrunk back to eight. In 1869, the number was again set at nine, and it has remained there ever since (Sorry, FDR!).

Obviously, adding more seats would not help the Republicans, since President Obama would just come up with as many liberal nominees as needed. But there is precedent for shrinking the size of the Court, and there's nothing that says that eliminating positions has to wait until retirement. Generally, when Congress cuts positions or agencies, those individuals are just out of a job. So, the GOP could pass a Judiciary Act immediately shrinking the Court back to seven people. Scalia's seat would go unfilled, the least senior justice (Kagan) would be out of a job, and the conservatives would once again be in control, 4-3. Of course, the Democrats would filibuster this maneuver and if the filibuster failed, Obama would veto the bill.

Naturally, none of these things is likely to happen, and some of them are downright impossible. So what is the point? Well, beyond the fact that it's a fun parlor game to ponder extreme cases, these kinds of questions also highlight a basic fact about the process of replacing Antonin Scalia: It's governed by relatively few rules, and so exactly how Barack Obama plays his hand matters a lot. (Z)

South Carolina Poll: Trump and Clinton Still Leading

A new CBS online poll released yesterday showed Sen. Bernie Sanders (I-VT) catching up to Hillary Clinton in South Carolina, her firewall state. Some polls had her 30 or 40 points ahead. On the Republican side, Donald Trump has increased his lead and is the overwhelming favorite now. Here are the numbers.

South Carolina Rank Candidate Pct 1 Donald Trump 42% 2 Ted Cruz 20% 3 Marco Rubio 15% 4 John Kasich 9% 5 Jeb Bush 6% 5 Ben Carson 6%

South Carolina Rank Candidate Pct 1 Hillary Clinton 59% 2 Bernie Sanders 40%

A couple of caveats are in order here. This was one online poll conducted by YouGov. Younger voters dominate online and this certainly helps Sanders, whose strength is young voters. A month ago in the YouGov poll, Sanders was behind by 22 points, now the gap has closed to 19 points with a poll using the same methodology, so he has made progress. Also noteworthy is that the poll was taken before Saturday's debate, so Jeb Bush's strong performance there is not accounted for. Nevertheless, South Carolina is Trump's to lose. (V)

Betting Markets Say It Will be Clinton vs. Trump

The current state of play at William Hill a British bookie that takes real-money bets on political outcomes, is that Donald Trump will get the Republican nomination and Hillary Clinton will get the Democratic nomination. Here are the odds expressed as probabilities.

Republicans Rank Candidate Probability 1 Donald Trump 0.476 2 Marco Rubio 0.267 3 Ted Cruz 0.182 4 Jeb Bush 0.143 5 John Kasich 0.067 6 Ben Carson 0.005

Democrats Rank Candidate Probability 1 Hillary Clinton 0.820 2 Bernie Sanders 0.233

The probabilities don't add to 1.000 due to the vig (juice), namely the money the bookie keeps no matter who wins. (V)

Republican Debate Postmortem

Saturday night, the Republican candidates—Donald Trump, Sen. Ted Cruz (R-TX), Sen. Marco Rubio (R-FL), Jeb Bush, Gov. John Kasich (R-OH), and Ben Carson—met for the ninth time. Added to the six debates for the Democrats so far, that's 15 total, with four more left for the blue team and three more for the red. Still, the commentariat has managed to put its debate weariness at bay long enough to weigh in:

Left-leaning media

Chris Cillizza, WaPo Winners: Rubio, Bush, John Dickerson, pro wrestling. Losers: Trump, the Republican Party, Carson. "This debate was downright nasty. Tons of name-calling. Lots of quotes that can be harvested by Democrats to be used against whoever emerges from the current bloodbath to be the Republican nominee. Just a bad face to put forward to the public."

Dylan Matthews, Vox Winners: Bush, Hillary Clinton, Bernie Sanders, Dickerson. Losers: Trump, Rubio. "[Rubio] needs a way to beat back Bush and Kasich and emerge once again as the natural establishment rival to Cruz and Trump. And he needed, tonight, to overcome his last disastrous debate performance and prove to the establishment that he won't fail them again. What happened instead was a basically fine debate performance, devoid of any obvious gaffes, that nonetheless was woefully insufficient to turn around his dying campaign."

Taylor Dibbert, HuffPo Winner: None. Losers: Trump, Carson, the Republican Party. "What more can be said about Trump? The orange-skinned loudmouth didn't have a good night, yet it's not clear if that matters. Frankly, it's not clear that Trump's debate performance has ever really mattered. Trump's preternatural ability to blend ideological incoherence and amazingly vague policy prescriptions with a consistently combative debate style makes him truly special."

Jason Easley, PoliticusUSA Winners: Bush, Rubio, Kasich. Losers: Trump, Cruz, Carson. "The message for voters from this debate is that they can't trust Donald Trump and Ted Cruz."

Luke Brinker, Yahoo News Winners: Dickerson, Trump. Losers: The Republican Party, Cruz, Carson. "[This] was a nightmare for the GOP elite, whose hopes of stopping Trump and Cruz are growing dimmer."

Right-leaning media

John Fund, Fox News Winners: Rubio, Bush, Cruz. Loser: Trump. "The ninth Republican debate was the nastiest. Gone were the early debate focuses on pointing out differences with Hillary Clinton and Bernie Sanders. This was hand-to-hand combat on Saturday night with no insult unsaid."

Niall Stanage, The Hill Winners: Bush, Kasich, Trump. Loser: Carson. "The fire in Bush's belly also helped him edge out one of his major rivals for establishment voters, Marco Rubio. That could be important since, of the three major polls of GOP voters in South Carolina conducted since last week's New Hampshire primary, Bush lags Rubio in two and is tied with him in the third."

Caleb Howe, RedState.com Winners: Cruz, Bush. Losers: Trump, Rubio, Kasich, Carson. "Donald Trump did not win. His war with the audience will play well to his rabid base, but to most people he just looked childish and, frankly, not too bright."

Jennifer Rubin, WaPo Winners: Bush, Rubio, the CBS moderators. Losers: Trump, Cruz, Kasich, Carson. "More surprising was Ted Cruz's performance. He came out strong in his tribute to Scalia, but was unconvincing in insisting his Value Added Tax is not really a VAT. He launched a broad based attack on Rubio's immigration, but clumsily tried to avoid answering whether he would expel the hundreds of thousands of illegal immigrants identified by the president's executive order. He seemed flummoxed when Rubio delineated his 'lies.' For much of the debate he was quiet, letting Bush and Rubio shine."

Ben Shapiro and Robert Kraychik, The Daily Wire Winners: Rubio, Kasich. Losers: Trump, Carson. "Trump is a disaster area. His yelling, shouting, ridiculous bloviation, and leftist lying were all on full display tonight. It may not matter."

Foreign media

Timothy Stanley, Daily Telegraph Winners: Bush, Cruz. Loser: Carson. "By the end of the CBS debate Saturday night I was left feeling simultaneously disgusted with the Republican Party and more confident about its future. Why? Because all the rhetorical violence on stage indicated that the GOP has a breaking point. Reaching it and going beyond it is the path to electoral success. Call it creative destruction."

Jeb Lund, The Guardian (UK) Winner: None. Losers: Trump, Cruz, Rubio, Carson, Kasich, Bush. "It's hard to tell which is sadder: that millions of people are stuck with these jerks; or that millions of people want to be. Even wrestling with the question for a few seconds makes you want to tune it all out—and, one assumes, plenty of voters already have."

Bruce Wright, International Business Times Winners: Cruz, Rubio, Kasich, Bush. Losers: Trump, Carson. "Billionaire businessman Trump, whose comments were frequently booed by the audience, may have been the debate's biggest loser. He was criticized for using profanity and pledged to refrain from here on. Some South Carolina voters have told reporters that they are disturbed by his vulgar language and the state has a high proportion of evangelical Christians."

Across the thirteen outlets, the tally ends up like this:

Bush: 9 wins, 1 loss
Rubio: 6 wins, 3 losses
Kasich: 4 wins, 3 losses
Cruz: 4 wins, 4 losses
Trump: 2 wins, 10 losses
Carson: 0 wins, 10 losses

So, Bush had a solid night and Rubio was good, but both were probably not good enough to help themselves. Trump lost, though nearly everyone makes a point of observing that it won't matter, while Carson simply does not belong on the stage. The consensus on that latter point is so strong that he has almost certainly received his last debate invitation.

There was one theme running through every single story published about the debate: How nasty it was. Frank Luntz, veteran Republican operative, lamented that "The GOP is destroying itself tonight, and they have no one to blame but themselves." We compared the evening to the Jerry Springer show; others used "wrestling match," "embarrassment," "shameful," "disaster area," "pitiful," "insane," and "painful." And despite the fact that it was on a weekend night, 13.5 million people tuned in to see the bloodbath.

The fact checkers, including CNN, the AP, PBS, USA Today, PolitiFact, and FactCheck have once again been burning the midnight oil. Cruz was wrong about lame duck presidents nominating people to the Supreme Court (they do make such nominations) and on unemployment rates (they are not at their highest level since 1977), Rubio was wrong about illegal immigration getting worse in the last three years (the numbers have remained steady), and Ben Carson's "quote" of Joseph Stalin is widely known to be apocryphal. Trump, meanwhile, was a one-man lying machine: He did not vocally oppose the Iraq War when it started, he is not entirely self-funded (or particularly close), he certainly did try to use eminent domain to build a parking lot, and Jeb Bush never threatened to moon a crowd in New Hampshire.

After nine debates in the last six weeks, the two parties are both going to take a short breather. The next meeting on either side of the aisle will be the GOP tilt on February 25 in Houston. By then, Carson should be gone (from the debates, at least, and probably from the campaign), we'll know if Rubio's decline and John Kasich's rise are temporary or not, we'll probably have confirmation that Ted Cruz and Jeb Bush are not really viable, and we will have proof that Donald Trump's supporters simply will not punish him for anything he says. (Z)

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---The Votemaster