News from the Votemaster

Republicans All Agree to Block Scalia's Replacement

Two hours after Antonin Scalia died, Senate Majority Leader Mitch McConnell said that the Senate would not consider deliberating about any nomination for a successor but would wait for the next president. Now most other Republicans have hopped on McConnell's bandwagon, including Republicans up for election in blue states. For example, Sen. Kelly Ayotte (R-NH), who is facing popular Gov. Maggie Hassan (D-NH) in November said she supports McConnell. Sen. Rob Portman (R-OH), who faces a tough reelection race, most likely against former governor Ted Strickland, also said he is with McConnell. Senators Ted Cruz (R-TX) and Marco Rubio (R-FL) are also against even vetting the nominee.

Some Democrats think that they can convince McConnell to take up the nomination by putting public pressure on him. That is very, very unlikely. But the situation could be political gold for the Democrats. Once the entire Republican Party has come out strongly against even considering any nominee, Obama could nominate an old-ish moderate such as Merrick Garland (63), the chief judge on the D.C. circuit court, the highest judicial position below the Supreme Court. At that point, it would be very hard for the Republicans to change their minds and approve him. Their base would scream "betrayal." Alternatively, he could name a black woman or a successful immigrant. U.S. Attorney General Loretta Lynch and California Attorney General Kamala Harris are both black women. If one were nominated and rejected. the Democrats would then say the Republicans can't tolerate blacks or women in positions of power. A powerful alternative would be Sri Srinivasan who immigrated from India to Kansas as a child and later got bachelors, law, and business degrees from Stanford before clerking for Ronald Reagan appointee Sandra Day O'Connor and then working as assistant solicitor general for George W. Bush. If the Senate rejected him, the Democrats would say Republicans hate all immigrants, even wildly successful Republican immigrants. They would also add that a Democratic Senate not only considered, but approved, the appointment of Anthony Kennedy in the fourth year of Ronald Reagan's second term, making him as lame a duck as Obama is now.

McConnell is playing with fire here. Suppose the presidential nominees are Hillary Clinton and Donald Trump. Clinton will probably name a 35-year-old liberal and Trump is totally unpredictable. There is no reason to believe he would nominate another Scalia. He could nominate his personal lawyer or his brother-in-law. Hell, he could nominate Cecile Richards, the president of Planned Parenthood. Crazy? Cruz is already running an ad featuring a clip from a 1999 interview by NBC journalist Tim Russert in which Trump says "I am pro-choice in every respect." No one knows what Trump would do, least of all McConnell. He's talking a huge gamble here.

If the Democrats capture the White House, most likely they will also take back the Senate because there are half a dozen vulnerable Republicans in blue states up for reelection. With Sen. Chuck Schumer (D-NY) as Majority Leader, there is a good chance Schumer will either abolish the filibuster or make the Republicans actually stand on the floor of the Senate for a couple of months reading the Bible over and over. A far better approach for McConnell would have been to act cooperative and say that of course the Senate will consider Obama's nominee. Then the Judiciary Committee could spend 3 or 4 months collecting information and could surely find some decision the nominee made 11 years ago that they claim disqualifies him. The PR would be a lot better than way, but it is not the path McConnell chose. It is going to be a bitter year ahead. (V)

Supreme Court Nominations Weren't Always Like This

The 1991 nomination of Clarence Thomas was as bitter as they come. He was accused of sexual harassment. The nominee said he was subject to a high-tech lynching. But the Democrats respected the fact that Bush was elected President and therefore his nominee was at least entitled to an up-or-down vote. Those days are long gone.

The reason is clear, of course. The court has become far more partisan, with five Republican appointees general siding with what the Republican Party wants and the four Democratic appointees generally siding with what the Democratic Party wants. That was never the case in the past. Earl Warren, arguably the most liberal Chief Justice in decades, was given a recess appointment on Oct. 1, 1953 and was made permanent by a unanimous voice vote of the Senate on March 1, 1954. Warren was a Republican governor of California before being appointed but he was fairly liberal and no one of either party in the Senate had any objections to him. It is simply inconceivable now that any nominee from any President would be accepted unanimously by the entire Senate with no discussion. (V)

The Scalia Vacancy Summarized in Seven Bullets

University of Chicago professor Charles Lipson has nicely summarized the whole discussion about filling Scalia's seat in seven short items:

• No nominee can get through the Senate before the election. No one.
• President Obama and all the Democrats know that. All God's children know it.
• Given that, Obama will use the nomination to burnish his credentials or advance other goals.
• Obama will pick someone whose demographic characteristics help in the presidential and Senate races.
• If Mitch McConnell even considered bringing the nominee to a vote, he would become the former majority leader.
• Both parties will use the issue to show the voters why it is crucial they support their party.
• All the rest is political theater, full of sound and fury, signifying nothing.

It's hard to disagree with Lipson. (V)

Should Cruz Recuse Himself From the Process of Picking Scalia's Replacement?

That's the argument of Northwestern University law professor Steven Lubet, who observes that Cruz may soon have business before the Court, namely the question of whether or not he's eligible for the presidency. In his role as a member of the Senate Judiciary Committee, he would be a in a position of interviewing and potentially endorsing his eventual judge, a clear conflict of interest.

This puts Cruz into quite a pickle. The conflict of interest is unambiguous, and for Cruz to ignore it would be extremely unethical. However, if he's not on the front lines of fighting for a Scalia clone, and against anyone to the left of that, his voters will not be happy. Meanwhile, once again, the citizenship question is rearing its ugly head. The list of reasons why it's hard to imagine Cruz getting the nomination thus grows even longer. (Z)

Trump Threatens to Sue Cruz; Cruz Strikes Back

Cruz is going after Trump in a big way, but Trump isn't taking this lying down. Yesterday he politely described what he thinks of Cruz:

Ted Cruz is a totally unstable individual. He is the single biggest liar I've ever come across, in politics or otherwise, and I have seen some of the best of them. His statements are totally untrue and completely outrageous.

Then Trump added that the one way he can fight back is to bring a lawsuit challenging the Canadian-born Cruz's eligibility to be President. While all Republicans honor Saint Reagan, they seem to have forgotten his Eleventh Commandment: "Thou shalt not speak ill of any fellow Republican."

Of course, Cruz is not the type to take such things lying down, either. In addition to the TV commercials, he also took aim at The Donald's sister, a federal judge, on Monday, calling her a "radical pro-abortion extremist" appointed to the court by Bill Clinton. Of course, Trump has no actual responsibility for what his sister says or does (much less what Bill Clinton says or does), but that presumably does not matter to Cruz or his supporters. It brings to mind the famous story of George Smathers' successful 1950 campaign for the U.S. Senate against incumbent Claude Pepper. According to Time, the challenger once asked a crowd:

Are you aware that Claude Pepper is known all over Washington as a shameless extrovert? Not only that, but this man is reliably reported to practice nepotism with his sister-in-law, he has a brother who is a known homo sapiens, and he has a sister who was once a thespian in wicked New York. Worst of all, it is an established fact that Mr. Pepper, before his marriage, habitually practiced celibacy.

It's not actually true (Smathers offered $10,000 to anyone with proof), but neither is Cruz's story. Trump's sister is not particularly pro-choice, and she was actually appointed to the bench by Ronald Reagan. There's a certain irony in Cruz countering attacks that he lies with...well, a lie. But that's politics. (V & Z)

It's Morning...in Canada?

One of the most effective political commercials in American history was Ronald Reagan's 1984 spot "Morning in America," an upbeat, hopeful recounting of The Gipper's accomplishments during his first term. Though the young, ultra-conservative Floridian Marco Rubio bears little resemblance to the much older, more pragmatic Californian Reagan, the Senator nonetheless is trying to fashion himself as St. Ronnie, part deux. And as part of that messaging, the Rubio campaign commissioned a remake of the classic ad entitled "Morning Again."

The new spot shows, first of all, that Rubio and his staff just don't get it. While the original ad was a celebration of what was right about America, the new ad laments everything that is wrong with the country. Beyond that, it has also left the Rubio team with some egg on their faces, because a fair bit of the footage in the ad actually shows Vancouver, Canada. Oops.

Rubio's not the only GOP candidate to have an embarrassing ad slip through the cracks, though. Ted Cruz released a new spot last week entitled "Conservatives Anonymous" that shows a group therapy session in which participants discuss their disappointment at having supported Marco Rubio, only to learn that he was pro-amnesty for undocumented immigrants. As it turns out, the people in the ad are actually actors and not former Rubio supporters, and one of them is a well-known soft-core porn actress. Double oops.

In short, it looks like more than one campaign will be on the market for a new ad agency. (Z)

Understanding the Delegate Selection Rules

As we have pointed out before, the delegate selection rules are arcane and vary from state to state (and are quite different for the Democrats and Republicans). Larry Sabato's Crystal Ball has a good rundown of the definitions used in the state delegate selection plans. Key ones are as follows:

Proportionality: Many states use proportional allocation but only the Republican primaries in Hawaii, Iowa, Nevada, North Carolina, and Virginia mean that if a candidate gets x% of the statewide vote he gets x% of the delegates. All the other states and all the states on the Democratic side mean something else by proportionality.

Qualifying thresholds: All Democratic primaries and caucuses and all but five of the Republican ones have some kind of threshold. Any candidate getting a smaller percentage than the threshold statewide or in a congressional district gets no delegates, which clearly affects how many the candidates above the threshold get. For the Democrats, the threshold is always 15%. For the Republicans, it is more complicated, with states often setting a threshold between 10% and 20%. If delegates are allocated statewide and by congressional district, the rules may be different.

Winner-take-all thresholds: The Republicans allow proportional primaries and caucuses to award all the delegates to any candidate who passes a certain threshold. It may not be lower than 50%. This year it is unlikely that any Republican candidate will get 50% of the vote in any contest before March 15, but in theory this rule could matter. The Democrats don't have such a rule.

Pooled delegates: Some Republican nominating contests and all Democratic ones allocate some delegates at large based on the statewide vote and some based on political subdivisions of the state, such as congressional districts or state senate districts. If all delegates are chosen statewide and the state is winner-take-all, like Ohio and Florida on the Republican side, a candidate like Donald Trump could get 30% of the vote and all the delegates. When the allocation is finer grain and their are fewer delegates at stake, odd things happen. For example, if four delegates are at stake in a district and there are two candidates who get 60% and 40% of the vote, respectively, they each get 2 delegates. If half a dozen candidates split up four delegates, you really have to get down deep in the fine print to see how the rounding works.

Backdoor winner-take-all triggers: If a state is in theory proportional but has a high threshold, say 20%, and only one candidate passes it, he gets all the delegates. For example, if the #1 candidate gets 36% and the #2 candidate gets 19%, the #1 candidate wins all the delegates. Although, in some states, it's the top two, regardless of whether or not the threshold is crossed by #2.

Winner-take-all: While the Republicans allow winner-take-all primaries, only the five states listed above actually have implemented that. All the other states and all the states on the Democratic side use some kind of proportionality. The consequence of this is that it is harder for the leading candidate to get to a majority as long as other candidates (think: Cruz, Rubio, Bush, and Sanders) stay in and keep collecting delegates.

Released delegates: What happens to a candidate's delegates if he drops out? On the Republican side, it is up to the states. In Iowa, Mike Huckabee and Rand Paul won delegates and those delegates remain bound to their candidate—if that candidate is placed in nomination. In 2012, the Republicans had a rule that only candidates who won eight states were placed in nomination in order to keep Ron Paul off the ballot. Other states allow delegates whose candidate has dropped out to vote for anyone they want to. In Kentucky and Texas, when a candidate drops out, the delegates are reallocated to the candidates still running. With the Democrats, statewide delegates follow the Texas rule but congressional district delegates can pick a new champion.

In short, actual delegate selection is extremely complicated and candidates who really understand the rules can gain an advantage by campaigning in areas where they can most profit from them. (V)

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---The Votemaster