[EL] ELB News and commentary 2/16/16
Rick Hasen
rhasen at law.uci.edu
Tue Feb 16 09:25:45 PST 2016
Will President Obama’s Supreme Court Nominee Be Confirmed?
<http://electionlawblog.org/?p=79999>
Posted onFebruary 16, 2016 9:24 am
<http://electionlawblog.org/?p=79999>byRick Hasen
<http://electionlawblog.org/?author=3>
I’ve been getting this question a lot and thought I would share some
thoughts.
I touched on this within hours of the announcement of Justice Scalia’s
death in Justice Scalia’s Death and Implications for the 2016 Election,
the Supreme Court and the Nation <http://electionlawblog.org/?p=79915>.
I said then that if the President chose a hard liberal nominee there’s
no way that this person would get confirmed by the Republican majority
Senate, but there was a chance with a more moderate nominee.
Since I wrote that, Senate Majority leader Mitch McConnell has said
there should be no nomination or hearings or vote, and many Republican
Senators have backed him up, including Sen. Orrin Hatch this morning
(who has been a Republican leader on these issues for decades).
Some have said that the Republican announcement so early was a stupid
move, because now Democrats can paint Republicans as obstructionist. A
better course, they argue, would have been to argue against the
President’s nominee and, as Donald Trump put it, “Delay, delay, delay.”
Others say that the announcement was important to please the base of
the Republican party, which cares deeply about this issue.
Given the Republican announcements, I expect things to play out as follows.
The President will nominate someone with impeccable credentials who is
unlikely to engender controversy, someone who has recently faced
confirmation by the Senate and passed through easily. Think Sri
Srinivasan and Paul Watford. Loretta Lynch is way too controversial, and
for this reason I thinkTom Goldstein is completely wrong
<http://www.scotusblog.com/2016/02/how-the-politics-of-the-next-nomination-will-pay-out/>to
say she’s the most likely nominee. A Lynch nomination would allow
Republicans to delay, delay, delay with a straight face. A Srinivasan or
Watford nomination would not.
There will be countervailing pressures on Senators about a hearing and a
vote. On the one hand, the base will strongly argue, as I’ve already
heard, that Democrats have been unfair to Republican nominees and
there’s no reason to give Obama an appointment which, at least for a
time
<https://www.washingtonpost.com/news/wonk/wp/2016/02/15/the-battle-over-replacing-justice-scalia-is-just-the-start-of-a-war-over-the-supreme-court/>,
can change the Court. There will be talk on both sides of precedents.
All of that history is kind of besides the point. Never came during
such an intense period of polarization, with polarization on the Court
lining up so neatly with political party affiliation.
The question of whether an Obama nominee will get a hearing will depend
upon the political pressure brought to bear on those Republican Senators
who are up for reelection and vulnerable. I expect that if those
Republicans get a lot of voter disapproval for blocking a stellar
Democratic nominee, there will be a hearing and a vote. If it is a real
moderate, some Republicans could even vote for the President’s nominee.
If there is not a lot of pressure there will not be a vote.
Assuming there is no vote, I expect Democratic nominee (most likely
Hillary Clinton) to pledge to nominate the same person upon being
elected. I expect the Court to be an issue for Democrats like ithas
never been before.
<http://talkingpointsmemo.com/cafe/supreme-court-greatest-civil-rights-cause> It
will energize both sides’ bases.
My guess is that with the political pressure there will at least be a
judiciary committee hearing. There may even be an up or down vote on the
floor. But I think the odds are against a confirmation of a Supreme
Court Justice. The Senators who would be honest and oppose an Obama
nominee on the merits might quote Obama himself on the nomination. As I
recount in the last chapter ofPlutocrats United
<http://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300212453/>,
which discusses campaign finance reform and the future of the Supreme
Court, Obama opposed Roberts not because of his competence but his
ideology. Consider the statement then-Senator Obama made against the
nomination of John Roberts to be Chief Justice of the United States in 2005:
There is absolutely no doubt in my mind Judge Roberts is qualified
to sit on the highest court in the land. Moreover, he seems to have
the comportment and the temperament that makes for a good judge. He
is humble, he is personally decent, and he appears to be respectful
of different points of view. It is absolutely clear to me that Judge
Roberts truly loves the law. He couldn’t have achieved his excellent
record as an advocate before the Supreme Court without that passion
for the law, and it became apparent to me in our conversation that
he does, in fact, deeply respect the basic precepts that go into
deciding 95 percent of the cases that come before the Federal
court—adherence to precedence, a certain modesty in reading statutes
and constitutional text, a respect for procedural regularity, and an
impartiality in presiding over the adversarial system. All of these
characteristics make me want to vote for Judge Roberts.
The problem I face—a problem that has been voiced by some of my
other colleagues, both those who are voting for Mr. Roberts and
those who are voting against Mr. Roberts—is that while adherence to
legal precedent and rules of statutory or constitutional
construction will dispose of 95 percent of the cases that come
before a court, so that both a Scalia and a Ginsburg will arrive at
the same place most of the time on those 95 percent of the
cases—what matters on the Supreme Court is those 5 percent of cases
that are truly difficult. In those cases, adherence to precedent and
rules of construction and interpretation will only get you through
the 25th mile of the marathon. That last mile can only be determined
on the basis of one’s deepest values, one’s core concerns, one’s
broader perspectives on how the world works, and the depth and
breadth of one’s empathy.
It would do this country a great service for people to recognize that,
posturing on both sides aside, this is about ideological control of the
Supreme Court.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Scalia’s Death Could Hurt Arizona’s Redistricting Supreme Court
Fight” <http://electionlawblog.org/?p=79997>
Posted onFebruary 16, 2016 8:44 am
<http://electionlawblog.org/?p=79997>byRick Hasen
<http://electionlawblog.org/?author=3>
KJZZ reports.
<http://kjzz.org/content/265432/scalias-death-could-hurt-arizonas-redistricting-supreme-court-fight>
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Donald Trump’s threat to sue Ted Cruz, explained”
<http://electionlawblog.org/?p=79995>
Posted onFebruary 16, 2016 8:41 am
<http://electionlawblog.org/?p=79995>byRick Hasen
<http://electionlawblog.org/?author=3>
The Fix reports.
<https://www.washingtonpost.com/news/the-fix/wp/2016/02/16/donald-trumps-threat-to-sue-ted-cruz-explained/>
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Posted incampaigns <http://electionlawblog.org/?cat=59>
“The Supreme Court Is the Most Important Issue in the 2016 Election”
<http://electionlawblog.org/?p=79993>
Posted onFebruary 16, 2016 8:38 am
<http://electionlawblog.org/?p=79993>byRick Hasen
<http://electionlawblog.org/?author=3>
Ari Berman
<http://www.thenation.com/article/the-supreme-court-is-the-most-important-issue-in-the-2016-election/>:
Healthcare, gay marriage, voting rights, affirmative action,
reproductive rights, labor rights, immigration, climate change.
These are some of the crucial issues that have come before the
Supreme Court in recent years or will be heard this year. It’s
become a cliché every presidential cycle to say that the Court
should be one of the most important issues in the election but this
year, following the death of Antonin Scalia, it’s never been truer.
The next president will almost certainly appoint one or more
Justices, especially if Republicans zealously oppose whomever
President Obama nominates, which will shape the direction of the
court for decades. A Democratic successor to Obama would be able to
achieve the first liberal court since the Warren Court of the 1960s…
TheRoberts Court
<http://www.thenation.com/article/the-case-against-the-roberts-court/>has
made it easier to buy an election and harder to vote in one, which
is why I recently argued that Democratic candidates should
makerepairing American democracy
<http://www.thenation.com/article/repairing-american-democracy-should-be-a-central-issue-in-the-2016-campaign/?nc=1>a
central focus in the campaign by embracing policies that reduce the
influence of big money, curb gerrymandering and protect voting
rights. None of these causes can be achieved without a sympathetic
Supreme Court.
In September Rick Hasen wrote a great piece arguing why the future
composition of the Court was themost important civil rights issue
<http://talkingpointsmemo.com/cafe/supreme-court-greatest-civil-rights-cause>of
our time. It’s now the most important issue, period.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
Weekend Writing on Scalia, Etc. <http://electionlawblog.org/?p=79991>
Posted onFebruary 16, 2016 8:27 am
<http://electionlawblog.org/?p=79991>byRick Hasen
<http://electionlawblog.org/?author=3>
Over the long and significant holiday weekend, I had the following
pieces that may be of interest:
1. Justice Scalia’s Death and Implications for the 2016 Election, the
Supreme Court and the Nation <http://electionlawblog.org/?p=79915>
2. Donald Trump Likely Has Standing To Contest Cruz’s Eligibility.
Trump Should Lose on the Merits <http://electionlawblog.org/?p=79940>
3. 1st Ef <http://electionlawblog.org/?p=79942>fect of Scalia’s Loss
May Be on#*SCOTUS*Shadow Docket, But We May Not Know It
<http://electionlawblog.org/?p=79942>
4. How Scalia’s Death Could Shake Up Campaign Finance; It might be the
opening reformers have been looking for (Politico
<http://www.politico.com/magazine/story/2016/02/antonin-scalia-death-campaign-finance-reform-213633>)
5. The battle over replacing Justice Scalia is just the start of a war
over the Supreme Court (Washington Post Wonkblog
<https://www.washingtonpost.com/news/wonk/wp/2016/02/15/the-battle-over-replacing-justice-scalia-is-just-the-start-of-a-war-over-the-supreme-court/>)
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Democrats See Chance to Bolster Enthusiasm in G.O.P. Pledge to
Block Scalia” <http://electionlawblog.org/?p=79989>
Posted onFebruary 16, 2016 8:08 am
<http://electionlawblog.org/?p=79989>byRick Hasen
<http://electionlawblog.org/?author=3>
Carl
Hulse<https://www.washingtonpost.com/blogs/plum-line/wp/2016/02/16/how-republicans-may-help-hillary-clinton-make-supreme-court-more-liberal/>reports
for the NYT.
Related: My TPM piece, Why The Most Urgent Civil Rights Cause Of Our
Time Is The Supreme Court Itself
<http://talkingpointsmemo.com/cafe/supreme-court-greatest-civil-rights-cause>
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Campaigns secretly prep for brokered GOP convention”
<http://electionlawblog.org/?p=79987>
Posted onFebruary 16, 2016 7:57 am
<http://electionlawblog.org/?p=79987>byRick Hasen
<http://electionlawblog.org/?author=3>
Politico reports.
<http://www.politico.com/story/2016/02/brokered-republican-convention-cleveland-219306#ixzz40KbCH0RB>
On a recent ELB Podcast, Ben Ginsberg
<http://electionlawblog.org/?p=78868> says we would not have a
“brokered” convention because there are no brokers anymore. That said, I
would expect Ben would be one of those brokers should it get to this point.
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Posted incampaigns <http://electionlawblog.org/?cat=59>,political
parties <http://electionlawblog.org/?cat=25>
Will Justice Scalia’s Death Affect the Outcome in Evenwel? I’m
Skeptical <http://electionlawblog.org/?p=79985>
Posted onFebruary 16, 2016 7:52 am
<http://electionlawblog.org/?p=79985>byRick Hasen
<http://electionlawblog.org/?author=3>
I’ve seen many people suggest this, including theNYT’s Adam Liptak
<http://www.nytimes.com/2016/02/15/us/politics/antonin-scalias-absence-likely-to-alter-courts-major-decisions-this-term.html?_r=0>:
The clearest impact is likely to be in Friedrichs v. California
Teachers Association, No. 14-915, on the power of public unions.
When the case was argued in January, it seemed clear that the court
was headed toward a closely divided decision in which the
conservative majority would rule that workers who chose not to join
public unions could not be made to pay for the union’s collective
bargaining work.
The likely outcome now is a 4-to-4 split that would leave in place a
decision from the federal appeals court in California upholding the
mandatory payments. That would be a major victory for the liberal
justices and public unions.
A similar dynamic may be in play in Evenwel v. Abbott, No. 14-940,
an important voting rights case. It concerns the meaning of “one
person, one vote,” asking who must be counted in creating voting
districts: all residents or just eligible voters?
The difference matters because people who are not eligible to vote —
children, immigrants here legally who are not citizens, unauthorized
immigrants, people disenfranchised for committing felonies,
prisoners — are not spread evenly across the country. Except for
prisoners, they tend to be concentrated in urban areas, amplifying
the voting power of Democrats.
A ruling requiring or allowing the counting of only eligible voters
now seems less likely, and a 4-to-4 split would leave in place an
appeals court decision upholding Texas’ practice of counting everybody.
I expect plaintiffs to lose this case
<https://electionlawblog.org/?p=77988>, and I don’t expect it to be
close. On Scalia specifically,t I noted Justice Scalia’s
uncharacteristic silence <https://electionlawblog.org/?p=78180>at the
oral argument in Evenwel:
Justice Scalia is not shy about expressing his opinion. He had
plenty to say in theoral argument
<http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-232_c0ne.pdf>yesterday
in the Harris redistricting case.He spoke
<http://blogs.wsj.com/washwire/2015/12/09/supreme-court-university-affirmative-action-hearing-live-blog/>at
today’s Fisher affirmative action argument as well. But at
yesterday’s Evenwel oral argument (the one person, one vote case),
he wassilent
<http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-940_4g15.pdf>.
Now silence from a Justice doesn’t necessarily mean anything.
Consider Justice Thomas, who never talks, but who has been the
person most active on the Court in getting the Court to reconsider
this one person, one vote issue (Thomas alone dissented from a cert
denial in a 2001 case raising the same issue).
But given that it is Justice Scalia, it does suggest he is not
heavily invested in this case, and therefore not a likely vote to
upset the apple cart. If he thought that plaintiffs had a good
theory, I would have expected him to go after Texas or the U.S. at
arguments. Scalia might believe (1) there’s not good originalist
argument here; (2) plaintiffs’ arguments go against principles of
federalism; (3) Burns and other cases are precedent that should be
followed here; or (4) all or none of the above.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Scalia’s death could doom McDonnell and hurt Menendez”
<http://electionlawblog.org/?p=79983>
Posted onFebruary 16, 2016 7:48 am
<http://electionlawblog.org/?p=79983>byRick Hasen
<http://electionlawblog.org/?author=3>
Josh Gerstein
<http://www.politico.com/story/2016/02/mcdonnell-menendez-scalia-antonin-supreme-court-219305>for
Politico:
Scalia was considered among the most receptive justices to
McDonnell’s argument that his conviction on corruption charges
improperly relied on the kind of favors that are commonplace on the
American political scene.
“Scalia was one of the most concerned members of the court about
criminalizing politics and the line between what’s allowed and
what’s not allowed,” said Rick Hasen, a law professor he University
of California at Irvine. “I think his voice would have been a very
important one in the McDonnell case.”
If the court can’t muster five votes in Scalia’s absence to overturn
McDonnell’s conviction, the appeals court ruling upholding his
sentence is likely to kick in, and he could be sent to prison.
However, the exercise of counting votes could understate Scalia’s
role in such a case, which seems like one where his passionate views
had the potential to swing other justices. “He would have — or could
have — attracted Justice [Elena] Kagan to his position. He could
have attracted Justice [Stephen] Breyer. In this instance, Scalia’s
absence is really to the detriment of the country,” Hasen said.
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Posted inbribery <http://electionlawblog.org/?cat=54>,chicanery
<http://electionlawblog.org/?cat=12>,Supreme Court
<http://electionlawblog.org/?cat=29>
I Talk Trump Suing Cruz Over Eligibility on “The Last Word” with
Lawrence O’Donnell <http://electionlawblog.org/?p=79981>
Posted onFebruary 16, 2016 7:42 am
<http://electionlawblog.org/?p=79981>byRick Hasen
<http://electionlawblog.org/?author=3>
Watch.
<http://www.msnbc.com/the-last-word/watch/trump-threatens-to-sue-cruz-623482435967>
Share
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Posted incampaigns <http://electionlawblog.org/?cat=59>
“How Obama Could Win Supreme Court Battle — Even If Republicans Take
the White House” <http://electionlawblog.org/?p=79979>
Posted onFebruary 16, 2016 7:39 am
<http://electionlawblog.org/?p=79979>byRick Hasen
<http://electionlawblog.org/?author=3>
Ari Melber
<http://www.nbcnews.com/politics/supreme-court/how-obama-could-win-supreme-court-battle-even-if-republicans-n519121>on
what could happen in the VERY unlikely event Democrats lose the
presidency but retake the Senate.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“See You In Court: Groups Sue Newby, EAC Over Proof Of Citizenship”
<http://electionlawblog.org/?p=79977>
Posted onFebruary 16, 2016 7:36 am
<http://electionlawblog.org/?p=79977>byRick Hasen
<http://electionlawblog.org/?author=3>
A ChapinBlog.
<http://editions.lib.umn.edu/electionacademy/2016/02/16/see-you-in-court-groups-sue-newby-eac-over-proof-of-citizenship/>
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,Election Assistance Commission
<http://electionlawblog.org/?cat=34>,The Voting Wars
<http://electionlawblog.org/?cat=60>
“‘You get one shot’: How Justice Antonin Scalia viewed the world”
<http://electionlawblog.org/?p=79975>
Posted onFebruary 16, 2016 7:35 am
<http://electionlawblog.org/?p=79975>byRick Hasen
<http://electionlawblog.org/?author=3>
Joan Biskupic writes
<http://blogs.reuters.com/great-debate/2016/02/16/you-get-one-shot-how-justice-antonin-scalia-viewed-the-world/>for
Reuters Opinion.
Joan has written the best and most interesting biography of Justice
Scalia,American Original
<http://www.amazon.com/American-Original-Constitution-Supreme-Justice/dp/0374532443>.
Now is a great time to pick it up.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Voter ID will get test as primary features key local, statewide
races” <http://electionlawblog.org/?p=79973>
Posted onFebruary 15, 2016 2:47 pm
<http://electionlawblog.org/?p=79973>byRick Hasen
<http://electionlawblog.org/?author=3>
The Milwaukee Journal-Sentinel reports.
<http://www.jsonline.com/news/statepolitics/voter-id-will-get-test-as-primary-features-key-local-statewide-races-b99670565z1-368861951.html>
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,voter id
<http://electionlawblog.org/?cat=9>
“How Do Interest Groups Seek Access to Committees?”
<http://electionlawblog.org/?p=79971>
Posted onFebruary 15, 2016 1:37 pm
<http://electionlawblog.org/?p=79971>byRick Hasen
<http://electionlawblog.org/?author=3>
Alexander Fouirnaies and Andrew Hall have postedthis
draft<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2719930>on
SSRN. Here is the abstract:
Concerns that interest groups use their financial resources to
distort the democratic process are longstanding. Empirical research
shows that interest groups seek access to legislators through their
campaign contributions, but the literature is limited in its focus
on direct access to relevant committee members in a static
institutional environment. If interest groups value committees, we
argue, then they should also value indirect access, that is, access
to those who make committee assignments and to those who set the
procedural rules of the legislature. We collect a new dataset on
U.S. state legislative committee assignments from 1988–2014, merged
with campaign finance data, in order to analyze over 300,000
candidate-committee observations across 99 legislatures. Using a
difference-in-differences design based on changes in individual
legislators’ positions in the legislature, we show that interest
groups value direct access to policy relevant committees, but we
also show that they value indirect access. When a legislator gains
procedural powers, interest groups reallocate considerable amounts
of money to her. We take advantage of the institutional variation in
the U.S. states to validate this indirect access hypothesis in
several additional ways. Taken together, the results reveal how
interest groups in a wide range of democratic settings seek to
influence the policy process not only by seeking direct access to
policymakers but by seeking indirect access to legislative procedure
as well.
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Posted inlegislation and legislatures <http://electionlawblog.org/?cat=27>
“GOP voters could participate in Democratic caucus”
<http://electionlawblog.org/?p=79969>
Posted onFebruary 15, 2016 12:45 pm
<http://electionlawblog.org/?p=79969>byRick Hasen
<http://electionlawblog.org/?author=3>
Jon Ralston:
<https://www.ralstonreports.com/blog/gop-voters-could-participate-democratic-caucus?mc_cid=c4b0791354&mc_eid=f390b4a272>
Nevada has a closed caucus system — that is, only Democrats can
participate on Feb. 20 and only Republicans on Feb. 23.
But because of a quirk in the system — cue the national ridicule
again — Republicans could vote in both caucuses. How?
Republicans closed their registration rolls on Feb. 13, and that is
the file that will be used on Feb. 23. Democrats are allowing
same-day registration on Saturday.
So: A Republican registered by Feb. 13 could show up at a Democratic
caucus site on Saturday, switch to the Democratic Party, vote and
then still participate on Tuesday because the party switch would not
show up on the GOP caucus rolls.
Share
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Posted inchicanery <http://electionlawblog.org/?cat=12>,election
administration <http://electionlawblog.org/?cat=18>
Podcast on #PlutocratsUnited with Heath Brown on New Books Network
<http://electionlawblog.org/?p=79967>
Posted onFebruary 15, 2016 12:40 pm
<http://electionlawblog.org/?p=79967>byRick Hasen
<http://electionlawblog.org/?author=3>
Liste
<http://newbooksnetwork.com/richard-l-hasen-plutocrats-united-campaign-money-the-supreme-court-and-the-distortion-of-american-elections-yale-up-2016/>n:
Richard L. Hasen
<http://www.law.uci.edu/faculty/full-time/hasen/>has
written/Plutocrats United: Campaign Money, the Supreme Court, and
the Distortion of American Elections
<http://www.amazon.com/dp/0300212453/?tag=newbooinhis-20>/(Yale
University Press, 2016). Hasen is Chancellor’s Professor of Law and
Political Science at the University of California, Irvine.
In the midst of the most expensive presidential contest in U.S.
history, is money buying access and influence? Are super PACs
corrupting the democratic process? Or are eager supporter simply
exercising their First Amendment rights? In Plutocrats United, Hasen
argues that these may be the wrong questions and the long-standing
debate between corruption and free speech – so long a part of
constitutional discussions of the issues – is in need of an
overhaul. Instead, he suggests that a renewed focus on political
equality could reshape the way the country and the Supreme Court
considered the role of money in politics. Hasen makes specific
policy recommendations for what a new campaign finance regime might
look like, and why this new approach would advance the democracy as
well as the principle of political equality.
Share
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79967&title=Podcast%20on%20%23PlutocratsUnited%20with%20Heath%20Brown%20on%20New%20Books%20Network&description=>
Posted incampaign finance
<http://electionlawblog.org/?cat=10>,Plutocrats United
<http://electionlawblog.org/?cat=104>,Supreme Court
<http://electionlawblog.org/?cat=29>
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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