[EL] ELB News and Commentary 3/29/17

Wed Mar 29 07:46:07 PDT 2017

“How Bill Nelson shook up the Gorsuch confirmation fight”<http://electionlawblog.org/?p=91847>
Posted on March 29, 2017 7:37 am<http://electionlawblog.org/?p=91847> by Rick Hasen<http://electionlawblog.org/?author=3>
Marc Caputo<http://www.politico.com/story/2017/03/bill-nelson-neil-gorsuch-opposition-vote-236598> for Politico:
Supreme Court nominee Neil Gorsuch seemed to be on track for a full Senate vote when a key Democrat helped throw it in doubt: Bill Nelson of Florida.
Nelson’s position had been closely watched. As a Senate indicator species — he’s an institutional centrist with a history of allowing Supreme Court picks to get a full vote — his stance on Gorsuch stood to provide insight into the political calculus of other Trump-state Senate Democrats who, like him, will be up for reelection in 2018.
By announcing on Monday his intention to filibuster Gorsuch, Nelson raised questions about the judge’s path to 60 votes and revealed a shift in political fault lines in the confirmation fight. Faced with the prospect of a primary challenge in the event he didn’t filibuster and the likelihood of a tough general election campaign against GOP Gov. Rick Scott either way, Nelson chose to lock down his left flank.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91847&title=%E2%80%9CHow%20Bill%20Nelson%20shook%20up%20the%20Gorsuch%20confirmation%20fight%E2%80%9D>
Posted in Supreme Court

“Why Democrats Have a Shot in a Georgia District Dominated by Republicans”<http://electionlawblog.org/?p=91845>
Posted on March 29, 2017 7:34 am<http://electionlawblog.org/?p=91845> by Rick Hasen<http://electionlawblog.org/?author=3>
Nate Cohn<https://www.nytimes.com/2017/03/29/upshot/why-democrats-have-a-shot-in-a-georgia-district-dominated-by-republicans.html?ref=politics&_r=0> for NYT’s The UpShot:
Mr. Ossoff probably would not have raised nearly as much money if he’d been competing for attention with 434 other races. His fund-raising tally is better than that of 96 percent of the congressional challengers who raised more than $100,000 in 2016, and there’s still time for him to move up the list.
Instead, it’s the Republicans who are struggling to coalesce. They have 11 candidates on the ballot, with none emerging as the obvious favorite, although former Georgia Secretary of State Karen Handel, the businessman Bob Gray and state senator Judson Hill are considered among the strongest contenders. Whoever advances to a runoff (assuming anyone does) will have only two months to coalesce support and raise funds with the benefit of party unity.
Low turnout could work to Democrats’ advantage, too. The enthusiasm that brought millions of Democrats to the streets and millions of dollars into Mr. Ossoff’s campaign account might just translate into an unlikely and possibly big turnout edge….
Democrats can’t count on huge fund-raising, a split Republican field and a low turnout for future victories.
But a strong Democratic turnout in Georgia’s Sixth would certainly raise the possibility that the party can cure its enthusiasm gap in the midterms. And if the Democratic turnout stays anything like what it is so far, it will be fair to start wondering whether Mr. Ossoff will win the election outright, with no need for a runoff. Weird things happen in special elections.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91845&title=%E2%80%9CWhy%20Democrats%20Have%20a%20Shot%20in%20a%20Georgia%20District%20Dominated%20by%20Republicans%E2%80%9D>
Posted in campaigns<http://electionlawblog.org/?cat=59>

“Investigating the ‘Structure’ of Contribution Limits: ‘Elementary, Holmes'”<http://electionlawblog.org/?p=91842>
Posted on March 29, 2017 7:22 am<http://electionlawblog.org/?p=91842> by Rick Hasen<http://electionlawblog.org/?author=3>
Sherlock Bauer’s latest.<http://www.moresoftmoneyhardlaw.com/2017/03/investigating-structure-contribution-limits-elementary-holmes/>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91842&title=%E2%80%9CInvestigating%20the%20%E2%80%98Structure%E2%80%99%20of%20Contribution%20Limits%3A%20%E2%80%98Elementary%2C%20Holmes%27%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>

“The Fundamental Dishonesty of the Gorsuch Hearings”<http://electionlawblog.org/?p=91840>
Posted on March 29, 2017 7:16 am<http://electionlawblog.org/?p=91840> by Rick Hasen<http://electionlawblog.org/?author=3>
Important Garrett Epps.<https://www.theatlantic.com/politics/archive/2017/03/the-fundamental-dishonesty-of-the-gorsuch-hearings/521097/?utm_source=twb>
I expressed similar sentiments yesterday. <http://electionlawblog.org/?p=91826>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91840&title=%E2%80%9CThe%20Fundamental%20Dishonesty%20of%20the%20Gorsuch%20Hearings%E2%80%9D>
Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“Is the Democrats’ Decision to Filibuster Gorsuch Irrational?”<http://electionlawblog.org/?p=91838>
Posted on March 29, 2017 7:01 am<http://electionlawblog.org/?p=91838> by Rick Hasen<http://electionlawblog.org/?author=3>
John McGinnis:<http://www.libertylawsite.org/2017/03/28/is-the-democrats-decision-to-filibuster-gorsuch-irrational/>
Now some academics, like Sandy Levinson<https://balkin.blogspot.com/2017/03/why-democrats-are-in-win-win-situation.html>, have argued that Democrats lose nothing by filibustering, because the Republicans would just get rid of the filibuster at the time of the next nomination. But that is not at all clear. First, the nominee might have more problems than Gorsuch. Second, some Republican Senators, like Susan Collins and Lisa Murkowski, would worry about imminent changes to the law on issues like abortion rights that the confirmation of a second conservative justice might elicit.  More dispassionate commentators, like Rick Hasen<http://electionlawblog.org/?p=91762>, understand this difference and recommend against filibustering Gorsuch.
Moreover, the threat of filibustering Supreme Court nominees is more helpful to Democrats than to Republican as a general matter. Because the current of our legal culture runs so strongly left<http://www.libertylawsite.org/2016/11/17/president-trumps-opportunity-to-create-a-lawful-judiciary/>, Democrats can nominate apparent moderates with some substantial confidence that they will drift left. Republicans on the other must find nominees with strongly formed commitments to resist the current and that opens up such nominees to the charge of extremism and thus to filibusters.
If the Democrats are not rational from the perspective of getting a congenial court, they may have other reasons for being sanguine about triggering the nuclear option.  First, the filibuster and subsequent nuclear option may help gin up their base in preparation for the 2018 election. But that is a long time away and citizens’ memories are short.
The more plausible reason is that Democrats are playing a longer game.  Just as eliminating the filibuster for lower court judges and executive branch nominations paved the way for eliminating the filibuster for Supreme Court nominations, so eliminating the filibuster for Supreme Court nominations paves the way for eliminating the filibuster for legislation. And the Democratic party (although not all individual Democrats) would be advantaged by its elimination. As the recent debacle over repealing Obamacare showed, it is harder to eliminate a major government program than to create it, because beneficiaries and those who serve beneficiaries become a powerful interest group for the status quo. Progressivism can better grow the entitlement state by a majoritarian system with fewer legislative checks and balances.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91838&title=%E2%80%9CIs%20the%20Democrats%E2%80%99%20Decision%20to%20Filibuster%20Gorsuch%20Irrational%3F%E2%80%9D>
Posted in Supreme Court<http://electionlawblog.org/?cat=29>

Trump Plans to Nominate Federal Judges in Their 30s to Maximize Influence over Judiciary<http://electionlawblog.org/?p=91836>
Posted on March 29, 2017 6:57 am<http://electionlawblog.org/?p=91836> by Rick Hasen<http://electionlawblog.org/?author=3>
From today’s Politico Playbook:<http://www.politico.com/story/2017/03/politico-playbook-federal-judgeships-236626>
PLAYBOOK SCOOP — The White House Counsel’s office is interviewing lawyers in their late 30s and early 40s for federal judgeships, sources familiar with the matter told us. It is a departure from the Obama administration, which mostly stuck to older, experienced legal professionals for judgeships. Republican presidents historically pick younger lawyers for judgeships compared to Democratic presidents. Placing younger candidates on the bench would ensure Trump’s influence on the federal court system for decades.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91836&title=Trump%20Plans%20to%20Nominate%20Federal%20Judges%20in%20Their%2030s%20to%20Maximize%20Influence%20over%20Judiciary>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Richard Posner: “The Real Corruption Is the Ownership of Congress by the Rich”<http://electionlawblog.org/?p=91834>
Posted on March 28, 2017 2:50 pm<http://electionlawblog.org/?p=91834> by Rick Hasen<http://electionlawblog.org/?author=3>
Oh my.<https://promarket.org/richard-posner-real-corruption-ownership-congress-rich/?utm_campaign=shareaholic&utm_medium=email_this&utm_source=email>   From Judge Posner’s keynote at a Stigler Center conferece:
On the Supreme Court’s 2010 Citizens United decision, Posner said: “If you become a member of Congress, you’ll get a card from the head for your party that you are to spend five hours an afternoon talking to donors. That’s not only time you spend with donors—they’ll take you to dinner, cocktails—but these five hours are important. The message is clear: you are a slave to the donors. They own you. That’s real corruption, the ownership of Congress by the rich.”
Later, remarking on the logic behind Citizens United, Posner remarked: “Your money is actually speech—that’s all nonsense.”…
“You are not going to have people competing with the the Koch brothers. They own many people in Congress.”
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91834&title=Richard%20Posner%3A%20%E2%80%9CThe%20Real%20Corruption%20Is%20the%20Ownership%20of%20Congress%20by%20the%20Rich%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>

The Voters Trump Persuaded<http://electionlawblog.org/?p=91831>
Posted on March 28, 2017 1:05 pm<http://electionlawblog.org/?p=91831> by Richard Pildes<http://electionlawblog.org/?author=7>
From Nate Cohn’s Upshot column<https://www.nytimes.com/2017/03/28/upshot/a-2016-review-turnout-wasnt-the-driver-of-clintons-defeat.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news>, which now has the most detailed data analysis on the voting patterns in the 2016 election:
Instead, it’s clear that large numbers of white, working-class voters shifted from the Democrats to Mr. Trump. Over all, almost one in four of President Obama’s 2012 white working-class supporters defected from the Democrats in 2016, either supporting Mr. Trump or voting for a third-party candidate. . . .
If turnout played only a modest role in Mr. Trump’s victory, then the big driver of his gains was persuasion: He flipped millions of white working-class Obama supporters to his side.
The voter file data makes it impossible to avoid this conclusion. It’s not just that the electorate looks far too Democratic. In many cases, turnout cannot explain Mrs. Clinton’s losses.
I continue to believe that the best account explaining these patterns is Katherine Cramer’s book, The Politics of Resentment:  Rural Consciousness in Wisconsin and the Rise of Scott Walker.  Though the book was written before the 2016 election and focuses only on Wisconsin, it documents the dynamics leading a substantial number of voters outside the major cities to being willing to vote for Obama (in both the 2007 primary and the general elections), Scott Walker, and Bernie Sanders.  Obama had a strong enough appeal to these voters to carry enough of them to win the elections; as Nate Cohn’s analysis confirms, the primary factor accounting for the changed outcome in 2016 is that around 20-25% of white-working class Obama voters shifted to Trump.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91831&title=The%20Voters%20Trump%20Persuaded>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

--
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
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20170329/fbe794bc/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2021 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20170329/fbe794bc/attachment.png>