[EL] ELB News and Commentary 2/26/16

Rick Hasen rhasen at law.uci.edu
Thu Feb 25 21:18:56 PST 2016 

    “Supreme Court Fight Won’t Die, No Matter How Hard Republicans Try”
    <http://electionlawblog.org/?p=80340>

Posted onFebruary 25, 2016 9:17 pm 
<http://electionlawblog.org/?p=80340>byRick Hasen 
<http://electionlawblog.org/?author=3>

NYT reports. 
<http://www.nytimes.com/2016/02/26/us/politics/supreme-court-congress.html?ref=politics>

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Posted inSupreme Court <http://electionlawblog.org/?cat=29>


    “With High Court Vacancy, It’s Hip to Seriously Think beyond
    Citizens United…” <http://electionlawblog.org/?p=80338>

Posted onFebruary 25, 2016 9:11 pm 
<http://electionlawblog.org/?p=80338>byRick Hasen 
<http://electionlawblog.org/?author=3>

WMP& 
<http://www.wmasspi.com/2016/02/with-high-court-vacancy-its-hip-to-seriously-think-beyond-citizens-united.html>I 
on my Plutocrats United talk at Harvard.

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Posted incampaign finance 
<http://electionlawblog.org/?cat=10>,Plutocrats United 
<http://electionlawblog.org/?cat=104>


    An Adult Conversation about the Fight to Fill Justice Scalia’s
    #SCOTUS Seat <http://electionlawblog.org/?p=80332>

Posted onFebruary 25, 2016 3:49 pm 
<http://electionlawblog.org/?p=80332>byRick Hasen 
<http://electionlawblog.org/?author=3>

Can we have an adult conversation, at least for a moment, about the open 
seat on the Supreme Court caused by the death of Justice Antonin Scalia, 
and President Obama’s attempt to fill that seat?

Very much like how the Supreme Court itself decides cases, the current 
debate over a SCOTUS nomination is full of lofty empty rhetoric and 
reliance on questionable precedent by all sides, when in fact the only 
real question is who will win a political power struggle over an 
increasingly political institution.

Sure, it is easy to dismiss the Republicans who, in sayingthey will deny 
a hearing, and even a meeting 
<http://www.politico.com/story/2016/02/senate-gop-supreme-court-219661>, 
with an eventual Obama nominee, rely on the so-called “Biden” rule in 
which Vice President Joe Biden, then a U.S. Senator and head of the 
Senate Judiciary Committee,said in 1992 
<http://www.politico.com/story/2016/02/joe-biden-supreme-court-nominee-1992-219635>that 
President George H.W. Bush should not nominate someone for the Supreme 
Court should a vacancy open before the end of his term. Democrats and 
Republicans have volleyed historical precedents back and forth, over 
issues such as how Justice Abe Fortas was treated in the 1960s, and 
nominations going back much further.

And then there is the/Wall Street Journal/oped 
<http://www.wsj.com/articles/only-eight-justices-so-what-1456272088>by 
Josh Blackman and Ilya Shapiro, conveniently saying that it is no big 
deal that there will be some 4-4 splits on the Supreme Court. So what if 
the contraceptive mandate is constitutionalin some parts of the United 
States but not in others 
<http://www.slate.com/blogs/the_slatest/2016/02/13/how_scalia_s_death_effects_the_term_s_biggest_cases.html>? 
So what if the Court cannot decide major questions about the legality of 
closing most abortion clinics in a state, the President’s power over 
immigration, and the permissibility of Environmental Protection Agency 
regulations to combat climate change?

But it is not just Republicans playing this game.Some Democrats 
<http://www.huffingtonpost.com/geoffrey-r-stone/the-supreme-court-vacancy_b_9310498.html>are 
protesting loudly that the Constitution demands for the Senate to 
consider an Obama nominee.

Is there any real doubt that if we were in the last year of the George 
W. Bush administration with a Democratic Senate, the Democrats’ 
arguments would be flipped with the Republicans? The Biden rule tells us 
what the answer will be.

Miguel Estrada (himself blocked by Democrats for a judgeship which would 
have been a stepping stone to the Supreme Court) and Benjamin Wittesare 
right: 
<https://www.washingtonpost.com/opinions/there-no-longer-are-any-rules-in-the-supreme-court-nomination-process/2016/02/19/2a56198a-d740-11e5-be55-2cc3c1e4b76b_story.html>there 
are no more rules about nominations to the Supreme Court, just political 
struggle.

Then there is the President, whotook to blogging at SCOTUSBlog 
<http://www.scotusblog.com/2016/02/a-responsibility-i-take-seriously/>to 
tell us he wants to nominate someone “who understands that a judge’s job 
is to interpret the law, not make the law.” But the President knows 
better than to make a comment equivalent to Chief Justice Roberts’ claim 
that he’s like an umpire that just calls balls and strikes.

Here’s what Obama arguedwhen he announced 
<http://www.wsj.com/articles/SB124390047073474499>why he was voting as a 
Senator against the nomination of John Roberts to be the Chief Justice 
of the United States:

    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% 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% 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% of the cases — what matters on
    the Supreme Court is those 5% 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.

So if we cut through all the hogwash about precedents, and what the 
President’s obligations are, about letting “the people” decide, about 
the difference between “interpreting” and “making” law, the dispute 
comes down to a political power struggle.

On the most important issues of the day—from gun rights to abortion 
rights, from climate change to voting rights, from consumer protection 
to campaign finance—-who sits on the Court matters. This is why before 
Justice Scalia’s death I called control of the Supreme Courtthe most 
important civil rights issue of the 2016 elections 
<http://talkingpointsmemo.com/cafe/supreme-court-greatest-civil-rights-cause>. 
Justices chosen by Republican presidents are very, very likely to have 
one set of views on these issues while Justices chosen by Democratic 
presidents are going to have the opposite set of views. This is not 
because these Justices are consciously acting to help their parties. It 
is because nominees are chosen for their jurisprudential commitments and 
worldviews which line up with what the parties care the most about.

Whether President Obama’s nominee ultimately gets a hearing and a vote 
depends upon a raw struggle for political power in a zero-sum game. And 
it is onelikely to repeat itself 
<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/>a 
few times during the next presidency, as up to three more vacancies open up.

My own view is that there should be a hearing because I want a 
progressive majority on the Supreme Court. It is the only path I see to 
campaign finance reform 
<http://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300212453/ref=la_B0089NJCR2_1_7?s=books&ie=UTF8&qid=1430416698&sr=1-7>and 
other issues I care about.

For the current vacancy, I expect the best predictor of how far the 
nominee will get depends upon polling among endangered Republican 
Senators up for reelection. If Mark Kirk or Kelly Ayotte appear to be in 
trouble, and Senate obstinacy on this issue appears to be part of the 
reason, Senate Majority Leader could well relent. Because the one thing 
that is probably worse to McConnell than a liberal Supreme Court is 
losing his Senate majority in 2016.

OK, now we can all go back to the fake rhetoric,debate about what 
happened in the Senate in 1880 
<https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/13/on-election-year-supreme-court-vacancies/>and 
watch both sides accuse the other of hypocrisy.

[Update: Josh Blackmanresponds 
<http://joshblackman.com/blog/2016/02/25/regarding-rick-hasens-post/>here as 
to the part of my post addressing him and his co-authored article 
entitled “Only Eight Justices? So What.” He points toanother post of his 
<http://joshblackman.com/blog/2016/02/14/the-impact-of-justice-scalias-absence-on-pending-cases/>on 
the expected 4-4 splits this term.]

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Posted inSupreme Court <http://electionlawblog.org/?cat=29>


    “Does Ben Carson Suspect His Campaign Was a Scam?”
    <http://electionlawblog.org/?p=80330>

Posted onFebruary 25, 2016 3:26 pm 
<http://electionlawblog.org/?p=80330>byRick Hasen 
<http://electionlawblog.org/?author=3>

A bizarre 
aspect<http://www.theatlantic.com/politics/archive/2016/02/ben-carson-thinks-maybe-his-campaign-was-a-scam/470715/>to 
what has so far been the strangest presidential election I can remember.

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Posted incampaigns <http://electionlawblog.org/?cat=59>,chicanery 
<http://electionlawblog.org/?cat=12>


    ” And we’re off… 2016 election season finally, fully underway,
    here’s what to watch” <http://electionlawblog.org/?p=80328>

Posted onFebruary 25, 2016 3:16 pm 
<http://electionlawblog.org/?p=80328>byRick Hasen 
<http://electionlawblog.org/?author=3>

That’s the lead story in this week’sElectionline Weekly 
<http://www.electionline.org/index.php/electionline-weekly>.

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Posted inelection administration <http://electionlawblog.org/?cat=18>


    “It’s a Presidential Election Year: Do You Know Where Your Voter
    Records Are?” <http://electionlawblog.org/?p=80326>

Posted onFebruary 25, 2016 3:13 pm 
<http://electionlawblog.org/?p=80326>byRick Hasen 
<http://electionlawblog.org/?author=3>

That’s the lead story inNCSL’s The Canvass. 
<http://www.ncsl.org/research/elections-and-campaigns/the-canvass-february-2016.aspx>

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Posted inelection administration <http://electionlawblog.org/?cat=18>


    Should Republicans Consider Ranked Choice Voting for their 2020
    Primaries? <http://electionlawblog.org/?p=80324>

Posted onFebruary 25, 2016 3:12 pm 
<http://electionlawblog.org/?p=80324>byRick Hasen 
<http://electionlawblog.org/?author=3>

Lee Drutman explores. 
<http://www.vox.com/polyarchy/2016/2/25/11116006/rubio-poor-chance>

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Posted inalternative voting systems <http://electionlawblog.org/?cat=63>


    “Candidates Decry Political Money, but Change Is Unlikely”
    <http://electionlawblog.org/?p=80322>

Posted onFebruary 25, 2016 10:08 am 
<http://electionlawblog.org/?p=80322>byRick Hasen 
<http://electionlawblog.org/?author=3>

Roll Call reports. 
<http://blogs.rollcall.com/news/candidates-decry-political-money-change-unlikely/>

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>

-- 
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
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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