Analysis Speculation

Kennedy no Swing Justice, Kavanaugh unlikely as dramatic upset to Court’s ideological baseline

As Judge Kavanaugh closes in on joining the Supreme Court, I’m reminded of some thoughts I had when Justice Kennedy first announced his retirement. Kennedy had long been hailed as a “swing vote” because, while a nominal conservative, he frequently broke ranks to side with the liberals. Now some are voicing concerns that another Trump pick, especially in the form of Kavanaugh, will signal a sharp and even unprecedented right turn that will last for a generation: last week, NPR’s Domenico Montanaro opined that this pick will be “replacing the swing vote on the Supreme Court” and that “for the first time in 75 years or so, there would be a conservative majority on the Court.”

There’s some truth that Kavanaugh would pull the Court to the right, but only because he is himself so sharply conservative in his jurisprudence. But Kennedy’s reputation as a swing judge is in fact quite undeserved. Kennedy was a pronounced conservative, and his “swing” decisions — typically involving individual civil rights — can be better understood through his relatively unsophisticated fear of government encroachment against finely scoped individual freedoms. If Kennedy was popularly understood to be a check on the more aggressively conservative inclinations of the modern Court, that understanding was mistaken. And if Kavanaugh is confirmed to replace him, that will most likely just cement the conservative-leaning majority the Court has actually enjoyed for most of the last 75 years.

2016 Analysis Election Op-Ed Review Speculation

for center-left, big data more useful for finding racists than understanding elections

Vox is center-left opinion with well-documented conflicts of interest masquerading as objective analysis, but every now and again they have something resembling reporting. Such was actually the case — despite the explosive headline “Persuasive proof that America is full of racist and selfish people” — when they interviewed Seth Stephens-Davidowitz, a former Google data scientist and occasional New York Times contributor. In addition to backing up the assertion that anonymity fosters both nastiness and honesty, that article established an apparently strong correlation between the frequency of certain internet searches and broader trends in our polarized voter population around election day. I found the interesting big data analysis lurking behind the volatile headline to be most fascinating for supporting what I believe to be a general dysfunction of the mainstream progressive dialogue today and a major liability for Democrats.

2016 Analysis Domestic Policy Economics Election Speculation

Jonathan Chait’s Nonsensical “Case” Against Bernie Sanders

Jonathan Chait, a smug, center-left blogger of some note among Democrats and moderates, recently weighed in on the Democratic primary. The article, with the self-congratulatory title “The Case Against Bernie Sanders” is worth exploring in some detail because of its bad logic, exaggerated arguments, and extreme cynicism. Ultimately, no one should be convinced by his “case.”

Analysis Book Nonfiction Review Speculation

Book Review: “Six Amendments” by John Paul Stevens

Six Amendments: How and Why We Should Change the Constitution is the latest scholarly work from former Supreme Court Justice John Paul Stevens. The book is as spare and strictly to-the-point as its title: discounting an index, a few pages of acknowledgements, a few more pages of glossy colour photographs, and an appendix with a complete transcription of the United States Constitution (as amended), Stevens makes his case for six distinct constitutional amendments in just 133 pages. As a retired Justice, it isn’t surprising that the selection and emphasis of many of the proposals underscore Steven’s frustration with often recently decided jurisprudence and are targeted to undermine or reverse certain decisions. The no-nonsense prose, coloured with Stevens’s famed wit, makes for an engaging and insightful read.

No proposed amendment is immune to critique, and some are less immune than others. But a majority of them clearly address pressing contemporary issues that likely need profound and dramatic legal changes to adequately remedy. The biggest challenge to Stevens’s proposed remedies is one he himself addresses in a short prologue: namely that the amendment process has been very infrequently used, and never more infrequently since the Civil War than in the last forty years. But, by suggesting remarkably simple yet concrete changes we could actually act upon, Stevens makes a powerful case that there are ways we can effect change more more decisively than what the slow and piecemeal legislative process may afford and less unexpectedly than ‘law from the bench’ often provides. I’ll discuss each proposal in turn.

Analysis Speculation

J.J. Abrams to (further) destroy another franchise

It was shocking enough when LucasFilm announced last October that it was selling the Star Wars franchise for $4 billion to none other than Disney, who would produce three more movies as sequels to the original trilogy. The horror of that news was leavened by the rational hope that even Disney probably couldn’t do worse to Star Wars than what Lucas himself did by deciding to make the prequels. Surely the negotiations were short.

2012 Analysis Election Speculation

I’m Akin to move on

I was surprised at first by the ferocity and duration of the controversy surrounding Missouri Rep. and Republican Senate candidate Todd Akin’s embarrassingly boneheaded remarks about the female reproductive tract’s alleged powers of discernment. The excoriations you’d expect to hear in response to an aging white male wax scientific about “legitimate rape” have been in ample supply from both parties. Even the insufferable Sean Hannity called his comments “a terrible mistake” on his show Tuesday night, and the next co-president of the United States, Mittens Romney, earlier that day called upon Rep. Akin to leave the race.

But then I got to thinking about why this is such a huge flap. Why should anyone be surprised that a republican has some seriously backward views? Obviously his comment about rape was as stupidly incorrect on the facts as it was ignorantly dismissive of the horrors, but stunning ignorance is a stock-in-trade of the modern republican party. I guess that’s the point really: Akin’s mumbling struck a nerve precisely because he’s again revealed the ugly truth of the far-right pro-lifers which have increasingly become the standard bearers of the republican mainstream. They’re so tragically or willfully misinformed in order to cling to their manifestly bogus stance on reproductive rights that it was inevitable one of them would detonate a land mine on camera sooner or later.

What’s really interesting (read: disgusting) is how transparently political the fallout has been.

2012 Analysis Election Speculation

why Ron Paul should win the primary

Let’s face it: no republican will become president in 2013.

That’s quite a bold claim, so allow me to defend it. The contentious republican nomination race continues without an obvious winner emerging as yet. There is still talk of a white knight coming to the rescue at the last minute, and this idea isn’t new: popular New Jersey governor Chris Christie was shamelessly pestered despite emphatic refusal to enter the race last summer, but he’s more likely to join the Romney ticket as VP; Indiana governor Mitch Daniels has been the target of speculation to fill this role, but he has also explicitly declined, and his official GOP response to Obama’s State of the Union speech in January, while popular on the far right, was quite frankly horrible in both content and presentation; even former Florida governor Jeb Bush is getting the eye, but it seems inconceivable that the republicans would risk their shot on a third Bush four years after the second one left office with the lowest approval rating in Gallup history. In short, the white knight scenario is not happening.

So four republicans remain in the presidential primary, and one of them will be named at his party’s convention in August for the general election barring some unlikely brokered convention scenario. But whom?

2012 Analysis Election History Speculation

thoughts about third parties

The GOP primary battle continues to rage, but Mitt Romney continues to dominate. Let’s recap: among viable non-Romney candidates, only Newt Gingrich remains in the race. Rick Santorum won in Iowa, but just barely, and has come in third or worst in all the other states to date. Ron Paul has yet to carry a state and admits he doesn’t yet know which ones he might. Newt Gingrich has only won so far in South Carolina, a racist southern state more likely than most to find resonance with “blacks should demand paychecks not food stamps” bullshit; and even then, his victory might well be attributed to a bump from some jabs he managed to get past the inept moderator at the debate held there days before the primary.

With contests in Minnesota and Colorado tomorrow, Romney is well positioned to double his collection of wins: according to PPP, he’s the clear favourite in Colorado and is in a more or less dead heat with Santorum in Minnesota. A win for Santorum there will not breathe life into his dying, unelectable bones, but the obvious loss Gingrich is about to face will surely kill all that remains of his momentum. It seems clearer and clearer that what has been conventional wisdom for months — that Romney will be the nominee — has been right all along.

All this would be considerably less interesting if there were any other uncertainties in the race. But Obama will not be primaried, and with unemployment rates starting to seriously drop, providing cautious optimism for some that a recovery is starting to kick back in, his reelection seems all but certain. Barring some cataclysm, does it seem reasonable to suppose that Romney could beat Obama? The latter is likely to enjoy something close to a repeat of the record black turnout in 2008, and Romney isn’t too popular even among conservatives (hence the unending support for the not-Romney candidate trending up at any moment). Obama is starting to put his toe in the general race now, saying he “deserves a second term” in an interview with NBC ahead of the Super Bowl. That’s a pretty nice time to have the national airwaves, and polls are showing he would do well in a race with Romney.

But all this is very sad! We must choose between a sitting president with a dubious record and a flip-flopping venture capitalist no one really likes. This ‘fact’ was ironically highlighted for me as I was reading Federalist 66 the other day and noticed this choice bit from Hamilton:

The [House of Representatives] will be the umpire in all elections of the President, which do not unite the suffrages of a majority of the whole number of electors; a case which it cannot be doubted will sometimes, if not frequently, happen.

Ha! Of course, this did happen, but only twice out of the 56 presidential elections held so far. In 1800, before the 12th amendment changed the rules of the electoral college, the House deadlocked repeatedly and finally elected Thomas Jefferson after 35 votes. And in 1824, following the dissolution of the Federalist party, four candidates each gained a fairly significant slice of the electoral vote. Andrew Jackson beat his next closest rival, John Quincy Adams, by 10 points in the popular vote and 15 electoral votes, but missed a majority by more than 30 electoral votes. The House eventually selected Adams after Henry Clay, also running, gave the former his support; Clay was eventually named Secretary of State in what was called a ‘corrupt bargain.’

So given the Constitution has baked into it a way to resolve disputes between candidates when none obtains a majority of electors, a mechanism Hamilton thought would be used ‘frequently’, why has it remained unused for nearly two centuries? Even from the earliest days of the republic, the two-party duality has been a potent force in general elections. The Federalists and Anti-federalists were not officially recognized parties like ours today are, but they were responsible for bitter election battles in the late eighteenth century. Parties were more dynamic between that 1824 standoff and the civil war, but the formation of the Republican party in 1854 saw more or less the final manifestation of the two-party system we see today, with only a handful of serious third party bids since.

Modern laws make it harder for third parties. Ballot access usually requires meeting some minimum signature bar in a petition, which means parties need nationwide local coordination, something which requires a large establishment. Debates are basically bi-partisan affairs and usually do not include third parties. Mass defection to a third party might swing the election to the least desirable of all three (consider the charge that Nader lost Gore the election in 2000). States almost always award electors on a winner-take-all basis, so the incentive for voters in each state to make their voices heard on the national stage by picking perceived winners is high.

In that vein, I think the biggest reason that the two-party system persists is inertia. The parties are well-established and can pretty easily either gobble up any fringe third-party platform (or ridicule it as being Unserious, as has been happening to Ron Paul’s candidacy generally). Most issues are binary as far as the average voter is concerned: you’re either mostly for gay rights, or you’re mostly against them; you want increased social programs, or you want to cut them back; you mostly want to drill for oil or you mostly want to research green energy. It doesn’t help that these ideas mostly align with conservative or liberal ideologies very nicely: conservatives tend to want to stick to the ancient ways, while liberals want to change most aspects of society and government.

Then there’s the related issue of bipartisan consensus. Perceived political realities force politicians to cave to certain positions, which then silences debate. Look to Clinton’s welfare reform, “tough on crime” laws which had led to unprecedented incarcerations, the jingoism of the runup to Iraq war that seems to have returned but this time against Iran; and of course, the notion that taxes should not go up except maybe for the other guy. When both parties largely agree on so much, it can be difficult to see what the usefulness of a third party could be. Is there a third major platform in American politics today? Evidently not.

And that is the main problem. The Tea Party was swallowed by the Republicans since they aligned closely enough to allow it. Obama has already begun to adopt of the rhetoric of Occupy and might win several of its less aware and passionate members. But this is too bad. An adversarial third (or fourth, or fifth) party would make this election battle a lot more interesting than the inevitable “lesser of two evils” Obama-vs-Romney scorched earth, no-holds-barred steel cage match. And if more people demanded better at the ballot box, they would get it: that’s a political reality. Consider that before holding your nose for Obama (or Romney if you have no soul) in November.

2012 Election Speculation

2012 will be interesting times

It seems obvious the 2012 election will be really lousy. No one will primary Obama (I wrote both the national democrats and the democrats of washington state imploring them to consider whether they ought to challenge him and how I could help, to no avail) and it is inconceivable that any non-Romney candidate could win the GOP nod. While a number of dems are up for reelection in the Senate, it seems easy to believe that everyone hates Congress but thinks their congressmen are decent. So are we in for another four years of Hope? Or if the economy doesn’t spring to life, can we expect independents to vote Romney with their wallets?

There are a number of wildcards worth considering, I think. The Tea Party is still alive, and we saw a few dramatic races determined by their influence in 2010. Now we’ll also have whatever influence Occupy manages to express, and it still has half a year to organize in earnest before the legislative races heat up. At the very least, these forces could make things interesting, if not determining races in surprising ways. Consider influential seats won by the Tea Party (Marco Rubio, Rand Paul), as well as prominent losses (Sharron Angle, Christine O’Donnell). Indeed, O’Donnell beat a popular establishment republican, Michael Castle, in that primary, and he might have given the eventual winner, democrat Chris Coons, a run for his money. I’d expect similar dynamics this year.

Then we have Americans Elect, an online electoral party. While it appears to be run by some shady, monied interests, it does promise to be perhaps the most open and transparent party in history. In all likelihood, nothing will come of it since most folks won’t have heard of it come election day and will throw in with the same tired two-party duopoly, but they do claim to be well on their way to securing ballot access in all 50 states. With the kind of money they have, they might well eventually be perceived as a force to be reckoned with by September, and it is still unclear how the Americans Elect party will even decide its ticket.

But perhaps most significant, there are two important cases pending before the Supreme Court that will be decided before the election. Less important on the national stage is Arizona’s immigration bill, SB-1070, but it will be interesting to hear Obama argue it, and either way the decision is going to piss off a lot of people. More interesting is Obamacare, where the Court will decide on the individual mandate and whether its constitutionality could kill the entire law. No matter what, this issue is bad for Obama. Suppose the bill is upheld. This will further enrage the right-wing and small-government zealots, who might just answer the call to canvas for whomever the GOP finally settles on in order to prevent four more years of creeping Islamic socialism. Suppose the bill is partially or totally killed. Obama already has a problem with his base, and the health bill was virtually the only major legislation he managed to pass. It’s death in a 5-4 decision could be enough to disillusion just enough supporters that their man can get anything done in this climate, and they might just sit at home in November. Either way, Obama has got to be running scared at this point.

And now consider again how lousy the GOP field is. The base has been sailing from one sweetheart non-Romney candidate to the next. Romney should be cleaning up, but he is so reviled that his eight-vote Iowa victory was more like an embarrassing loss to Rick Santorum, the gay-hater, of all people. And there’s virtually no one left. Gingrich seems like he is more bent on revenge, inviting Romney to ‘cut the pious baloney’ at today’s debate, than winning what he must realize is now an unwinnable nod. Perry is too stupid to leave now even though it must be obvious he has no chance even in South Carolina after his loss in Iowa and inevitable rout in New Hampshire, where he has roughly 5% support according to a recent Ramussen poll. He’ll be gone just like Bachmann by February.

What is certain is that Ron Paul will not be allowed the nomination by the republican elite, and he is doing a lot better now than he was four years ago. Many of his supporters are not republicans, and even the ones who are would surely vote for him on a third-party ticket before voting Romney. Paul’s incentive to leave the party once it becomes inescapably obvious that he won’t be their guy at the convention will be high since he could do well as the libertarian nominee. While that would help Obama more than Romney, a number of disaffected progressives would probably sooner vote for Paul, or not at all, than for Obama. After all, Paul says all the right things about civil liberties and wars that made for great talking points against Bush before it became a democrat doing all the same things. But his own racist and anti-choice positions will be disqualifying for many who would otherwise turn to Obama.

If I had to call the election today, I’d say its a nailbiter of a win for Obama. But I think things will look a lot different by the summertime conventions, and it will be interesting to watch events unfold. Santorum’s recent surge is probably not unlike the similar week-long spikes his other minor opponents enjoyed throughout the fall, but the difference now is that the time for fooling around has passed. Momentum he gets from the caucuses and primaries could matter a lot more since there aren’t any non-Romney candidates left (excluding Huntsman, Roemer, and maybe other folks I haven’t even heard of) and there’s no more time to dally. It’s just too soon to tell.