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Saturday, February 13, 2016

This is the worst news possible

Justice Scalia has passed away. What a disaster for Obama to have the opportunity to make that nomination. I wonder if the Republicans in the Senate can stall for a year, but I doubt it. There are too many squish Republicans who will think that they have to show deference to Obama's nominations. As if Democrats have ever shown such deference.

Ed Whelan has advice
for the Senate Republicans to pay attention to history.
It’s been more than 80 years since a Supreme Court justice was confirmed in an election year to a vacancy that arose that year, and there has never been an election-year confirmation that would so dramatically alter the ideological composition of the Court.

Senate Republicans would be grossly irresponsible to allow President Obama, in the last months of his presidency, to cement a liberal majority that will wreak havoc on the Constitution. Let the people decide in November who will select the next justice.

Too many decisions are 5:4 now. This will flip everything that conservatives care about. We'll have to see if cases before the Court right now may end up as ties that will revert to the lower court decisions.

Now it becomes more important than ever for the Republicans to stop horsing around with the nomination battle. We can't afford a President Trump making nominations. He's already bought into liberal spin to criticize Scalia on affirmative action. And he praises his sister a radical pro-abortion circuit court judge. With a real opportunity to win this year, let's not throw away that opportunity. The Supreme Court is too important to turn over to Clinton or Sanders.

Even with a Republican president, it would probably be impossible to get a conservative like Scalia ever confirmed again.

My condolences to his family. It is a tragedy for them and a disaster for the country.

Tom Goldstein at Scotusblog explains what will happening to the cases this term that have not yet been decided. If the justices are tied, the lower court stands. And there are quite a few crucial decisions remaining.
The most immediate and important implications involve that union case [Friedrichs v. California Teachers Association] and Fisher v. University of Texas at Austin, in which the Court was expected to limit affirmative action in public higher education. Conservative rulings in those cases are now unlikely to issue. Other significant cases in which the Court may now be equally divided include Evenwel v. Abbott (on the meaning of the “one person, one vote” guarantee), the cases challenging the accommodation for religious organizations under the Affordable Care Act’s contraceptive mandate, and the challenge to the Obama administration’s immigration policy.

The Court is also of course hearing a significant abortion case, involving multiple restrictions adopted by Texas. In my estimation, the Court was likely to strike those provisions down. If so, the Court would still rule – deciding the case with eight Justices.

There is also recent precedent for the Court to attempt to avoid issuing a number of equally divided rulings. In Chief Justice Roberts’s first Term, the Court in similar circumstances decided a number of significant cases by instead issuing relatively unimportant, often procedural decisions. It is unclear if the Justices will take the same approach in any of this Term’s major, closely divided cases.

Friday, February 12, 2016

Cruising the Web

Ted Cruz's campaign has a strong TV attack ad out against Donald Trump and his past use of eminent domain. I've always been of two minds about whether such attacks work since I suspect that most people don't understand what eminent domain is, but Cruz centers on the story of how Trump tried to take the house of an elderly widow, Vera Coking, so he could build a garage for his casino in Atlantic City. The ad uses Trump's own self-praise for his use of eminent domain as well as clips from a John Stossel interview featuring Stossel's skeptically raised eyebrows and mustache. And Coking herself appears saying that "Heart? He doesn't have no heart, that man." The closing line of the ad is "Trump uses power for personal gain. Imagine the damage he could do as president."

That's a long way from how Cruz refused to criticize Trump for so long so that he could ride safely in Trump's wake hoping to pick up Trump's supporters. The gloves now are, apparently, off.

The reason why I think this ad may well work is that it is long enough to explain what Trump actually did and how he tried to benefit himself by taking private property from a woman whom he regarded as beneath him. Some of the attacks on Trump have just been along the lines of saying, "Oh, he used eminent domain and still defends Kelo." The assumption is that people know what eminent domain is and are familiar with Kelo v. City of New London. But I bet that average people have no idea what Kelo is and so such attacks fly right by them.

I was recently teaching my AP Government and Politics class about the concept of eminent domain and we covered Kelo. My students are mostly 10th graders. A couple of kids in each class were familiar with the term. I used a hypothetical example of one of the student's homes and what would happen if the city decided they needed to expand a highway using their home's property. That helped them understand the concept. As the students learned what it meant, they could actually think of places in their own community where this had happened. Then I tell them the story of Suzette Kelo's house and how she lost it because of the Supreme Court's ruling. I tell them that the Pfizer plant was never built and that the property sits empty now and has been used for a dumping ground, they're horrified. They get it. They understand why so many people were so angry about this case because they can imagine it happening to anyone's house if the government decides that a company should have it. It only takes a few minutes of class discussion for students to go from not knowing what the concept means to being upset about how it has been used to go beyond the original idea of taking land for public use to using it to benefit private businesses. I'll present the arguments of the city of New London and the five justices who ruled in their favor that such a taking would benefit more people and (supposedly) create jobs and thus benefit the community as a whole. They aren't convinced. Every year when it comes time to cover eminent domain, I see the same transformation and rejection of the arguments of those who, like Donald Trump, supported the decision.

So my experience seeing how opinions can form when people learn about the case leads me to think that Cruz's ad can hurt Trump. I hope it does. There are so many reasons why I dislike Trump, but if this is the one that resonates with voters, Vera Coking will have had the last laugh.

Here is Cruz's ad.

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And here is today's bad news for Obamacare.
It wasn’t that long ago when ObamaCare fans were wagging their fingers at critics, saying industry profits proved that the law was working. They’ve been noticeably silent as insurers report huge losses.

“It turns out that the law that the insurance industry’s shills demonized has been awfully good to insurance-company investors.” That was from a piece in the Huffington Post almost exactly a year ago, after UnitedHealth Group released its Q1 earnings.

The writer went on to point out that the good news was reported in the pages of IBD, while our editorial page has long been critical of the law. “I can’t wait,” Wendell Potter concluded, “to see how IBD’s editorial writers spin UnitedHealth’s ObamaCare success.”

We can’t wait to see how Potter and other ObamaCare fans are spinning the law’s “success,” now that insurance companies are showing big, sustained losses and threatening to pull out of the program next year.

The latest to join the list is Humana, which just reported that profits fell 30% in the last quarter of 2015 and has set aside a reserve for expected losses this year. It’s now saying it “continues to evaluate its participation” in the individual insurance market.

A few days earlier, Aetna said it lost up to 4% on its ObamaCare policies in 2015 and said it had “serious concerns about the sustainability of the public exchanges.”

And UnitedHealth Group said it expects losses from its ObamaCare enrollees to top $650 million this year and next. “We cannot sustain these losses,” is how CEO Stephen Hemsley put it.
And remember. Obama wanted the federal government to bail out insurance companies for their losses from Obamacare. Think of what a bottomless pit of spending that would have been. Fortunately, there was a provision placed in 2014's spending bill that prevented federal money being used to bail out those insurance companies. And Marco Rubio had a big role to play in accomplishing that. Yuval Levin, who knows a whole lot more about Obamacare and the efforts supporting and opposing it, explains that yes, Rubio did play an important part in protecting us from bailing out the insurance companies.
So what, you might ask, does Marco Rubio have to do with this complicated story? The answer, it seems to me, is that none of it would have happened if Rubio had not made the risk-corridor insurer bailout an issue, starting in 2013. Before that, a few health wonks on the right had raised red flags about the issue, but it wasn’t until Rubio and his staff grasped its significance, insistently drew attention to it, and produced a bill to avert an insurer bailout that the issue became prominent among the priorities of Obamacare’s opponents. Rubio was without question the first and most significant congressional voice on this subject, and if he hadn’t done the work he did, the risk-corridor neutralization provision would not have been in last year’s (or this year’s) budget bill.

In this sense, Rubio and his supporters are certainly right to say that he has done more than pretty much anyone to actually push back against Obamacare, and to force the system to confront the implications of its command and control economics. But the lesson some of those supporters draw from that fact isn’t quite the one I’d draw: Ironically, although some Rubio supporters are using the issue to contrast his actually getting things done with Ted Cruz just making noise about things, Rubio got something done on this issue entirely by making noise about it. He was effective because he chose the right target, and because he made noise in an effort to champion a specific, concrete, practical step in response. For that, Rubio surely does deserve credit. There is no question in my mind that Obamacare’s insurer bailout would not have been stopped if not for him.
I've always been surprised that Rubio doesn't make more of his history here, especially to answer the charges that he didn't accomplish anything while in the Senate. My recommendation to him would be to play this up a lot. But he needs to find a way to explain in a couple of a sentences what it was he was preventing. People don't understand it unless it's explained to them, just like with eminent domain. So instead of firing off a list of issues that he was involved with, he should focus on one issue and explain what his role was and the impact of that provision. Walk people through what he did as a demonstration of how he worked with others to raise a red flag and get something done that has done more to damage Obamacare than all of Ted Cruz's grandstanding and shutting down of the government. He didn't do it all himself, but he worked with others to get the provision written and passed. I think Rubio has been missing a big opportunity here to let people see what he's done in the Senate beyond the Gang of Eight bill.

And if eminent domain becomes a subject in Saturday's debate, he needs to talk more about what he did in the Florida House to change Florida's laws.
Right before taking the speakership, Rubio headed a special committee assigned to craft legislation in response to the Supreme Court’s decision in Kelo vs. New London, which broadened the power of governments to take private property through eminent domain. Rubio put together a bill that limited the state’s authority to seize property and declared that the prevention or elimination of slums, blight, or public nuisance was no longer considered a valid public purpose for the government’s use of eminent domain. Few lawmakers wanted to stand up for the government’s right to seize private property, and the final bill passed with only three nays.
If Rubio wants to fight the accusation that he's just an empty suit who talks nice, he needs to go into more detail about what he has done in both the Florida legislature and the Senate. He needs to tell the story so people understand. Presenting a bullet-point list is not enough. Too often he falls back on his family's immigrant story and what that means to him. It's time to move beyond that to talk about what he's done when he had the power and influence his parents could never have imagined. I keep waiting for him to do that and he really hasn't. That's why Christie's attack so resonated when Rubio could have fought back talking about real accomplishments instead of going down the rabbit hole of arguing over whether or not Obama is an evil ideologue or an incompetent amateur.

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It's a tough job for Obama to convince people that the economy is going along just great. No one seems to be buying that. It's clear from the New Hampshire vote that voters are very worried about the economy.
A striking finding in Tuesday’s voter exit poll is how anxious nearly everybody in the Granite State is about the U.S. economy—even more than six years into the expansion that Mr. Obama so vigorously salutes.

As the nearby table shows, pollsters asked voters in both parties how worried they are about “the direction of the nation’s economy in the next few years.” An astonishing 93% of Republicans said they were either very or somewhat worried. It makes you wonder what the 1% who said they aren’t worried are drinking. (Substitute smoking if you live in Vermont.)

But lest you think this anxiety is partisan, the mood among Democrats is little better. A total of 79% of Democratic voters said they were either very or somewhat worried, with 29% very worried. Bernie Sanders beat Hillary Clinton by 3 to 1 among the very worried. Add up the totals in both parties and some 86% of the state’s voters are at least somewhat worried.
And listen to Sanders and Clinton talk. Neither of them seem to agree with Obama that there is no reason to worry about the economy.
To put it another way, the most persuasive repudiation of Mr. Obama’s economic record is coming from Democrats. Mr. Sanders and Mrs. Clinton are both campaigning against the economic status quo, deploring the lack of income growth, rising income inequality and unaffordable health care, among other problems.

Mr. Obama once let slip in 2008 that he wanted to become the progressive version of Ronald Reagan by changing the terms of America’s political debate. Yet when George H.W. Bush campaigned to succeed the Gipper in 1988, he ran to extend the undeniable prosperity of the Reagan years. No one in either party is running to extend Mr. Obama’s prosperity because the voters know it doesn’t exist.

Kimberley Strassel details how Bernie Sanders has played the role for Hillary Clinton of the little boy exposing the emperor's nudity. I apologize for the mental image that metaphor might have evoked. But Strassel is exactly right.
Picture Bernie Sanders as a small child in the court of Empress Clinton, and you have a modern twist on Hans Christian Andersen. The adoring Democratic townspeople oohed and aahed over their “tough” and “experienced” and “masterful” leader, the anointed heir to the Clinton throne. Then Bernie murmured what was obvious, and the crowd looked again.

What they saw in New Hampshire was a dour, 68-year-old woman, shouting at her audience in her best impression of emotion. They saw a gaunt former president, rambling to half-empty forums, grumping about his wife’s political opponent. They saw the candidate’s surrogates try to snag the votes of young women by threatening them with eternal damnation. They saw a campaign in disarray, dragging carload upon carload of ethical baggage. They saw that the empress has no (or very few) clothes.

No one knows whether Bernie Sanders can pull off a nomination. But what everyone does know now is that Hillary has (and is) a problem either way. Let’s dispense with some spin: Bernie never had a lock on the Granite State. New Hampshire had stepped up for the Clintons twice before, in 1992 and 2008. This year Hillary went into the contest with endorsements, a huge operation and plenty of money.

What she didn’t have was the interest of voters. They’d had their eyes opened, and they chose to use their primary to highlight Mrs. Clinton’s many and obvious political weaknesses. She may still be the favorite to hold her party’s banner, but the mantle of inevitability has been stripped away.

New Hampshire exposed again what a wooden candidate Hillary is. Mr. Sanders strolls on stage and makes his audience sing and cheer. Mrs. Clinton’s events begin with propaganda videos about her past, followed by a tutorial on why she deserves this. They are heavy, and droning.
If Barack Obama's argument for his leadership experience in 2008 was to point to his successful political campaign for the nomination, Hillary's campaign is the anti-argument. She just can't run a good campaign. She couldn't in 2008 and it's a mess again this year.
New Hampshire also uncovered the mismanagement that always attends the Clintons. Hillary wakes up every day with a new campaign. She ignores Mr. Sanders. Then she runs left. Then she attacks him. Then she softens. Her staff has endless debates, which always end up leaked to the press, about whether she needs to appear “stronger,” or more “human,” or “sharper,” or “softer,” or more “pragmatic,” or more “lofty.”

She has a habit of unceremoniously firing campaign teams. And this scattershot approach comes from a woman who has been plotting to be president for at least a decade? All this shifting may be another reason why the public sees her as “untrustworthy.”

To that point, New Hampshire proved that concerns about Mrs. Clinton’s ethics aren’t merely a right-wing talking point. They’ve permeated the electorate. Some stunning numbers: Among the one-third of Democratic primary voters who said “honesty” was the top quality they wanted in a nominee, Mr. Sanders won 91%. Among the quarter who said they focused on a candidate who “cares about people like me,” Mr. Sanders won 82%.
If the Democratic Party hadn't been so enamored of the Clintons for so long, they would have realized what a potential disaster she could be as a candidate and other Democrats beyond Sanders and O'Malley and poor Jim Webb would have had the financial and political support to get into the race. And now, she'll have to play the race card big time if she wants to defeat Sanders in the upcoming primaries. The only comfort I've had, as Trump rides his wave of enthusiasm, is enjoying the disaster that the Democrats are facing in their own race.

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John Podhoretz did his duty as a political columnist and watched last night's Democratic debate so we wouldn't have to. The message coming from Clinton and Sanders was not one of uplift.
The message from Thursday night’s Democratic debate is that everybody in America should get on a leaky rowboat and find somewhere, anywhere, else in the world to live — because life in the United States is a nightmare from which millionaires and billionaires and the Koch brothers and the Republicans will not allow us to awake.

The two candidates for the Democratic nomination spent most of two hours arguing over who was the better diagnostician of the moral diseases, ideological calamities, spiritual infirmities, racial injustices and downright evils that are being visited upon the suffering 320 million who have found themselves through no fault of their own trapped between two oceans in a dystopian oligarchic hell they call America.

Hillary Clinton and Bernie Sanders were essentially auditioning last night for the role of Snake Plissken. Do you remember Snake Plissken? He was the eyepatch-wearing hero of “Escape from New York,” the 1981 science-fiction picture in which Manhattan has become a prison and Snake Plissken is the only guy who can find the way out.

Only the America from which they want to liberate us is Barack Obama’s America. Oh, they don’t say as much. Hillary blames the Koch brothers. Bernie blames millionaires and billionaires and the campaign-finance system. They both blame the Republicans.

But let’s face it: It’s Obama’s world. They and we are all just living in it.
Yeah, it's getting tougher and tougher for Obama to convince everyone how wonderful things are going when the two contenders of his own party to succeed him are vying with each other to paint the darker picture of Obama's America.

At least Hillary could be thankful that the PBS moderators didn't do their due diligence and let her slide by without a question on her looming scandals.
So let me get this straight: on the same day that the Washington Post reports that the State Department issued subpoenas to a family foundation bearing Hillary Clinton’s name as part of a federal investigation, the PBS debate moderators didn’t ask her about it.

While presidential candidates Sen. Ted Cruz (R-TX) has been asked about a loan from Goldman Sachs and Donald Trump about bankruptcies in his past (legitimate questions in my mind), a federal subpoena to a foundation where Hillary Clinton recently served on the board doesn’t even warrant a murmur from Gwen Ifill and Judy Woodward, two PBS journalists?

As the Washington Post’s investigative unit reported just today, the State Department Inspector General issued subpoenas to the Clinton Foundation as part of a federal investigation. (Why did the Inspector General issue the subpoenas? Did the Clinton Foundation refuse to turn over relevant documents? It’s unclear at this point.) What is clear is that the State Department felt the need to obtain internal documents from the Clinton Foundation as part of their investigation.

It’s also clear that the Clinton Foundation is of interest to the American people. All day it was a ten top trending subject of Facebook, which was the cosponsor of the debate. But it was never mentioned by the debate moderators.

In addition to the ongoing email investigation by the FBI, we now know that the bureau is also investigating the Clinton Foundation. How does this not warrant a single question by debate moderators?
Well, they're part of the Clinton Praetorian Guard. That explains it.

Poor Debbie Wasserman Schultz. She really does have a terrible job. Watch Jake Tapper totally flummox her when he asks her to explain the Democratic Party's system in which Sanders and Clinton can have the same number of delegates coming out of New Hampshire even though he built her by 22 points there.

As Jennifer Rubin argues, Hillary's candidacy may just not be salvageable. She's a terrible candidate facing a serious legal threat that is all of her own making. And leaks are coming out of the FBI investigation at a regular pace to expose how much trouble she's in. And playing the race card might not work any better than playing the gender card has worked for her.
Clinton and her supporters thought gender loyalty would save her. It has not. Now she thinks minority voters will ride to her rescue. But why should they? Sanders is giving away free stuff and telling them the system is rigged. Voters under 40 years old don’t remember the Bill Clinton years; they remember Hillary Clinton as the candidate who tried to take down then-presidential candidate Barack Obama and the person who jetted around the world while Obama was delivering on health care. She has not as yet shown the talent to reconstruct the Obama coalition, despite her faith that identity politics will win the day. (In case you have forgotten, her “identity” is a rich, white woman.)

Clinton may not dig herself out from all of this. Democrats who don’t think so are whistling past the graveyard of the Democratic Party. For months Democrats worried about an alternative to Clinton; now they should be worrying about an alternative to Sanders. Clinton may just not be up to the task.

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Thursday, February 11, 2016

Cruising the Web

John Yoo expresses what has bothered me about both Donald Trump and Bernie Sanders: their approach to government is totally contrary to the vision set forth by our Founding Fathers. Or, as Yoo writes, they are "the Founders' worst nightmare."
They designed the Constitution to moderate the people at home while preparing a president to act quickly to counter emergencies, crises, and war abroad. Instead, the Republicans have a demagogue and the Democrats have an economic radical who promise swift, extreme change.

The men who met in Philadelphia in 1787 to write a new constitution designed it to prevent someone like Donald Trump from ever becoming president. One of their great fears was of a populist demagogue who would promise the people everything and respect nothing. As Alexander Hamilton, the key theorist of executive power during the Founding, warned in Federalist 67: "Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honours of a single state."
Sound like someone we've been seeing up close since June? Yet Trump is not the only one who should give us pause with respect to overturning the Founders' vision.
The Framers would also be aghast at Bernie Sanders. His calls for a political revolution, fomenting of class hatreds, and desires for a socialist economy also run directly contrary to the Framers design. The Framers believed our Constitution and our government should not view or think of people as economic classes or special interests. They were not na├»ve – they knew that what they called "factions" were an inevitable product of democracy. "Liberty is to faction what what air is to fire, an ailment, without which it instantly expires," James Madison wrote in Federalist 10. "But it could not be a less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air."

Our Constitution did not address the specter of factions by creating a government so strong that, in the hands of a crusading populist, it could crush special interests. Instead, it creates a decentralized government too difficult for one party to take over. It divides the national government between president, Congress, and the Judiciary. It further keeps federal power narrow and reserves authority over most of daily life to the 50 states. America would never suffer Sanders' political revolution or his wish to transfer the "means of production" (for those who have forgotten their Karl Marx since the fall of the Soviet Union, he is referring to private property and financial and intellectual capital) from private hands to the public. Ask the communist nations of Europe and Asia, with millions of lives lost and millions more oppressed from the 1930s-1980s, how that experiment turned out.
Ben Shapiro also sees the similarities between Sanders and Trump in their dangerous approach to government power. Shapiro provides excerpts from their speeches to note how alike their points are when they both inveigh against special interests and their influence on elections and free trade. Both urge using government power to limit the former and end the latter. They both promise to preserve entitlements shutting off any hope of reform on these financially failing programs. Bernie Sanders demonstrates a Trumpian opposition to illegal immigration because it brings down people's wages. And on foreign policy, they have a similar disinclination to use American force abroad. As you read the quotes, you might have trouble distinguishing which came from Trump and which from Sanders.

And they both are promising the same approach to fixing what they perceive as the nation's ills - more power in Washington to expand the power of government.
So why are Trump and Sanders soaring? Because they both represent a reaction to the corruption and entitlement culture of Washington D.C. – and both of those reactions are anti-democratic. Neither candidate ever talks about the proper role of government. They just talk about how they’ll increase its power to use it for their own purposes.

That’s what many of their supporters want. Many Trump supporters frequently comment that he “wins,” that he will “win” for America, that he’s capable of “making deals,” that he’s not beholden to anyone or anything. Sanders supporters say the same thing.

Many Trump supporters – the ones who believe he is a transformational figure – ignore the fact that Trump won’t change the nature of government in any real way. They’re looking for a singular authoritarian solution to the problems of their lives. They believe it takes a power broker to stop the power brokers. Hand Trump the ring of government power, and watch what he can do! He may not cast it into the fiery chasm from whence it came, but he’ll use it to fight Mordor sometimes.
Conservatives recoil at Sanders' efforts to use the government for socialist ends. But we should also be horrified at what Trump promises to do and his vision of the power of the executive to do just about anything he says.
Sanders’ supporters also object to a corrupt government – but they think that more government is the solution. They think the government is bought and paid for by outside parties, and they want an honest socialist dictator in charge to clean house. They want a Hugo Chavez to ride in on the wind and use the power of government to punish their enemies. Sanders may proclaim that his motivating feeling is hope, but the real motivation behind his campaign is bitter jealousy and petty vengefulness.

These are the wages of big government and an unendingly powerful executive branch. Too many people gain too much by its existence to do away with it; too many people want to control the guns and the money to back a true reformer. Every four years we now pick our dictator. It’s just a question of whether that dictator does the stuff you want, or whether you’re his target.
Both candidates appeal to the anger and fears of the public, but we should be extremely wary of electing a demagogue who will promise the public that he has the power to fix everything through his sole efforts. We have seen how that has worked under Obama. Do we truly want more of that unilateral approach to governing?

John Podhoretz also remarks
on the similarities between Sanders and Trump.
The most important takeaway, though, is this: The politics of resentment won Tuesday night. It hasn’t had a showing like this in the United States maybe since the 1890s.

Donald Trump and Sanders have a remarkably similar and remarkably simple message, and it’s this: You’re being screwed. They agree that international trade is screwing you, that health care companies are screwing you and that Wall Street is screwing you.

Sanders says he’s going to throw bankers in jail, raise everybody’s taxes — and provide universal health care.

Trump says he’ll deport every illegal immigrant, keep Muslims out of the country until “we can find out what the hell is going on,” force Mexico to build a wall, levy a 45 percent tariff on China — and provide universal health care.

Simple, straightforward and catchy — that’s the key. And none of it is your fault. Everything bad that’s happening, everything that makes you nervous and worried and uncertain about the future, is the result of a great wrong that is being done to you.

Sanders says it’s being done by malefactors of great wealth. Trump says it’s being done by morons and idiots who run Washington and are getting their hats handed to them by canny malefactors in Beijing and Mexico City.

Will this message carry beyond New Hampshire? Of course it will, whatever happens to the candidacies of these two men.

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In another similarity between Trump and Sanders, Howard Slugh explains in The Federalist how Trump would be a disaster for conservative jurisprudence. With three justices who will be in their eighties during the term of the next president, it is increasingly important that we have a true conservative, not a phony conservative like Trump, making the nominations.
As has been extensively chronicled, Trump is not a conservative. His views on the judiciary are no exception. Trump recently repeated liberal smears against Justice Scalia—painting him as a racist for questioning the efficacy of affirmative action.

Trump is also on the record supporting the Supreme Court’s Kelo decision “100 percent.” In Kelo, the Court greatly expanded the government’s authority to seize private property. In supporting Kelo, Trump sides with justices Stevens, Souter, Ginsburg, Kennedy, and Breyer against justices Scalia, Thomas, Rehnquist, and O’Connor.

In general, Trump touts his ability to make deals and get along with everyone. This includes the likes of Harry Reid, Nancy Pelosi, and Chuck Schumer. That is precisely what conservatives want to avoid from Supreme Court nominees. A president who compromises with Senate Democrats on judicial nominees is far more likely to nominate a Justice Souter or Kennedy than a Justice Scalia or Thomas.

If conservatives want to maximize the possibility of appointing justices who won’t balk at striking down Obamacare, overturning Roe, and preventing executive overreach, they need to elect a conservative president willing to stand on principle and expend political capital fighting on behalf of originalist nominees. This does not describe Donald Trump.
We've already seen how awry a nomination by a Republican president go when the justice gets on the Court. Remember that Justices Stevens and Souter, two of the most radically liberal justices of the past 40 years were both appointed by presidents. And we still have to wait breathlessly to find out which way Anthony Kennedy, a Reagan appointee, will lean on any given issue. Conservatives should be aware that many decisions of the past couple of decades have been narrow 5:4 decisions that could be easily overturned if the next president appoints the wrong justice.
The Court could find the death penalty unconstitutional, create a constitutional right to assisted suicide, eliminate any restrictions to abortion on demand, and vastly expand the power of agencies like the Environmental Protection Agency. The possibility of overturning Roe in such a circumstance would be precisely zero.

On the positive side of the ledger, the Court has recently protected the Second Amendment, refused to allow the government to censor movies that mention politics, protected religious liberty, and curbed some instances of President Obama’s executive overreach. A hypothetical Court dominated by justices nominated by presidents Obama and Clinton would reverse each of those precedents and push the law in the opposite direction.
And true conservatives should also be worried about the judges appointed to the lower courts.
This problem is not limited to the Supreme Court. Most lower-court judges also serve lifetime appointments. The vast majority of cases never reach the Supreme Court. In those cases, a lower court has the final word. Recently, lower courts have settled cases involving the right to carry firearms, Obamacare, and abortion because the Supreme Court refused to hear an appeal. Lower-court decisions have significantly impacted Second Amendment doctrine in particular.
If two terms of Obama appointees are followed by the sorts of judges that Trump would likely appoint, we can just kiss the idea of courts following the guidance of the Founders good-bye. And how do we know Trump would appoint such judges. He has told us so. He said that he has praised his sister, a Clinton appointee to the Third Circuit Court of Appeals, as someone who would be a phenomenal choice. So what do we know about Judge Maryanne Trump Barry's judicial choices?
She has been involved in hundreds of cases, but one of the first cases in her tenure sticks out the most: Planned Parenthood of Central New Jersey v. Farmer, which was argued in late 1999 and filed in July 2000.The Third Circuit struck down the New Jersey Partial-Birth Abortion Ban Act of 1997, and Barry wrote in her majority opinion that the law “places an undue burden on a woman's constitutional right to obtain an abortion.”

Barry didn’t stop there. She continued by giving a full-throated defense for legalizing infanticide:

“The Legislature's argument that Roe and Casey are inapplicable to ‘partial-birth” abortion procedures because such procedures are infanticide rather than abortion is based on semantic machinations, irrational line-drawing, and an obvious attempt to inflame public opinion instead of logic or medical evidence,” Barry wrote.

“…In what can only be described as a desperate attempt to circumvent over twenty-five years of abortion jurisprudence, the Legislature would draw a line based upon the location in the woman’s body where the fetus expires,” Barry continued. “Establishing the cervix as the demarcation line between abortion and infanticide is nonsensical on its face as well as inaccurate because that line may be crossed in any number of abortion procedures which the Legislature concedes are constitutionally protected.… The Legislature’s attempt to label the Act a birth, instead of an abortion, regulation is nothing more than an effort to cloud the issues and avoid clear precedent.”

Wow — all that coming from a “Republican” judge! Barry’s argument was essentially a legal defense of a birth not being a birth unless the person giving birth desires it to be a birth. According to Judge Barry, there should be no other considerations — and none whatsoever for the living, breathing child itself.

And this is who Donald Trump thinks of first for a Supreme Court Justice nominee?
We have it from Trump's own words what a phenomenal member of the Supreme Court his sister would be. He has spoken on record that he is pro-choice. When questioned about that in one debate, he said he changed his mind to become pro-life when a friend had a baby they had considering aborting and the child turned out to be a wonderful person so he changed the pro-choice position he had had all his life up to then. Notice that, in his own explanation, he didn't change his mind because he considers a fetus to be a human life to be protected; it's all because that particular baby grew up to be a wonderful person that he wants to protect life. What if that child had grown up to be obnoxious or stupid? Is that still a life worth protecting? And has he really changed his view? This is what he said in an interview with Mark Halperin:
Halperin: Say a woman is pregnant and is not in any of those exception categories [rape, incest, or life of the mother], and she chooses to have an abortion.

Trump: It depends when. It depends when.
Is that the answer of someone who is truly pro-life? Pro-life proponents might argue about whether exceptions to bans on abortion should be allowed in the cases of rape, incest, or threats to the health of the mother, but they would not argue that abortions should be okay up to some point in the pregnancy. He's still arguing in the rhetoric of a man who, until he decided to run for the presidency as a Republican, supported partial-birth abortion. Do those Republicans getting to ready to vote for him in South Carolina know Trump's history on abortion and his weak proclamations of a conversion to being pro-life? If not, is anyone going to point it out to them"

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It's just typical of the convoluted process the Democrats are using for their nomination process that Bernie Sanders could have an overwhelmingly popular vote victory over Hillary Clinton, but she still emerges from Tuesday's vote with more delegates than he did. It's all because of their superdelegates rules.
Though Bernie Sanders won the New Hampshire primary in a landslide over Hillary Clinton, he will likely receive fewer delegates than she will.
Sanders won 60 percent of the vote, but thanks to the Democratic Party’s nominating system, he leaves the Granite State with at least 13 delegates while she leaves with at least 15 delegates.

New Hampshire has 24 “pledged” delegates, which are allotted based on the popular vote. Sanders has 13, and Clinton has 9, with 2 currently allotted to neither.

But under Democratic National Committee rules, New Hampshire also has 8 “superdelegates,” party officials who are free to commit to whomever they like, regardless of how their state votes. Their votes count the same as delegates won through the primary.

New Hampshire has 8 superdelegates, 6 of which are committed to Hillary Clinton, giving her a total of 15 delegates from New Hampshire as of Wednesday at 9 a.m.

The state’s 2 remaining superdelegates remain uncommitted.

In the overall delegate count, Clinton holds a commanding lead after a razor-thin victory in Iowa and a shellacking in New Hampshire. Clinton has 394 delegates, both super and electorally assigned, to only 42 for Sanders.
Of course, she had a commanding lead among superdelegates in 2008 but they eventually, as I'd been predicting all along to my students that year, switched over to Obama once it became clear that he was winning the popular vote in their states. Superdelegates are, above all, politicians. And if they see their constituents supporting Bernie Sanders, they will suddenly see the light just as they did with Barack Obama. So don't count those delegate totals with the superdelegates as written in stone.

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Jennifer Rubin has some good advice for Marco Rubio if he's going to be able to stage a comeback, something that is looking more and more problematic for his candidacy after New Hampshire and the renewed life given to Bush and Kasich.
First, he should take a page from Jeb Bush’s playbook and become entirely accessible to the media. He should be talking to them daily on the stump, in interviews, anywhere and everywhere. Eschew the process-talk and expound on issues, focusing on not just analysis of the problems but also on detailed solutions. Overwhelm the press with depth and spontaneity, and the coverage will change.

Second, be aggressive and freewheeling in the debates. Rubio has too often played defense, waiting to be attacked on immigration or on his experience. Instead, he should aggressively go after Sen. Ted Cruz (R-Tex.) and Donald Trump on national security and their inability to articulate a cogent strategy for defeating the Islamic State. Moreover, neither one of them has a workable tax plan (Trump would add $10 trillion to the debt; Cruz wants a value-added tax), entitlement reform plan (Trump won’t even touch Social Security) or overall growth strategy. Their appeals to nativism and protectionism are anti-growth, akin to the populism of Sen. Bernie Sanders (I-Vt.). Rubio should keep at them with the “How?” questions. (How do you beat the Islamic State from the air? How do you grow the economy? How do you save Social Security?) In the assaults on the not-serious-about-policy candidates, he will find some help from both Jeb Bush and Ohio Gov. John Kasich.
It sounds as if Rubio has already determined to follow the first part of that advice by spending 45 minutes on his charter flight to South Carolina taking questions from the media on the plane.
He took questions from reporters aboard his charter flight to South Carolina for nearly 45 minutes, longer, he said, than any news conference he has given since he was a state senator and speaker of the House in Florida in 2006.

As he spoke, he made it clear that he was entering a new phase of his campaign, one less burdened by the caution and message discipline that have made him seem mechanical and scripted at times.
He's also finding ways to laugh at his glitch moment in last weekend's debate.
When asked if that moment would be similar to the time Rick Perry forgot his line and uttered “Oops,” a mistake that essentially ended his 2012 campaign, Mr. Rubio, laughing, said that his problem was just the opposite.

“There’s a big difference,” Mr. Rubio said. “He couldn’t remember what he wanted to say. Apparently, I remembered it too well.”

With flashes of humor, candor and emotion that have been so rare during his campaign, Mr. Rubio was making an effort to push back against the emerging caricature of him as a candidate: robotic, stiff and over-rehearsed.

He described how his four children were a big factor in his decision to acknowledge how badly he had performed in the debate.

“More than what I’ll ever say to them is what they watch me do,” he said. “And I want them to see it. Their dad, hey, you know what? It didn’t work out. I didn’t do well enough. I’ve got to do better. I taught them more last night in that experience, I feel, than any words I’ll ever share with them.”
I had listened to a podcast before the debate and New Hampshire (but I can't remember which it was since I listen to a lot of political podcasts while driving and doing housework) and the reporter said that Rubio didn't show a sense of humor on the stump and that Cruz was actually quite funny and Trump is always cracking up his audiences, but Rubio was always serious. She thought that that was preventing people from warming up to Rubio. Maybe, in laughing at himself, Rubio can cross that humor divide.

Chris Deaton writes in The Weekly Standard that Obama's proposed new budget makes Rubio's point for him that Obama knows exactly what he wants to do.
There has been further restructuring of American policy since that law [Obamacare] took shape: An economic agenda built on "fair shares" at home, and a self-imposed suppression of the country's influence abroad. But Obama hasn't witnessed all of his desired changes become law. There's more to be accomplished on the issues of climate change, education, gun control and immigration. Guantanamo Bay is still open. The nation's healthcare system is his ongoing project.

Freed of the burden of winning another election, he has advocated his positions on these matters unreservedly.

"I intend to get as much done in the next 22 months as possible," he said last May. There are still about 11 left. And even when those months have passed, he said his presidency "is not a project that stops after a certain term in office, and it's not a project that stops after an election."

Rather, it "is something that we have to sustain over the long term."

....There's one other sentence in Rubio's debate answer for which you'll rarely hear him or another Republican express regret, though: "Barack Obama is undertaking a systematic effort to change this country." In case the people he is trying to persuade needed a reminder, here comes one more budget from the president's desk, this one the boldest of any he has released. The proposal, submitted Tuesday, spends more than $4.1 trillion next fiscal year. The revenue it claims to raise from taxes—$2.6 trillion over the next 10 years—is mostly old news. Here's something fresh: a new tax on oil companies of $10 per barrel.

The president has often claimed that the tax code favors millionaires and billionaires over teachers and nurses. There's never been any discussion of environmentalists versus families that lack access to public transportation.

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Gosh, I love Spurs coach Gregg Popovich. His sideline interviews where his terse, but amused, answers express his contempt for the requirement that coaches should talk to the media while the game is still in progress. We all know what he's thinking and the interviewers know it also, but they also recognize that the public loves seeing how he'll shoot down the stupid questions that the reporters always ask him. That's why, if you watch a Spurs game, the announcers will tout an upcoming Popovich interview as if it's the highlight of the entire game. This interview that he gave Tuesday night is nothing new except for the response he gave when the reporter ended the interview by telling him that Bernie Sanders and Donald Trump had just won the New Hampshire primary.

Wednesday, February 10, 2016

Cruising the Web

Well, those are depressing results. I have that same sense of just not recognizing my country as when people were going bananas over Barack Obama in 2008. But I could better understand how people were deceived by what he was saying and not understanding who he truly was given how the media portrayed him as this enlightened savior who would save us from the taint of racial prejudice and partisan divide. I knew it was hooey back then and so it has proven to be. But Donald Trump? I can read all the analyses about how people are angry and admire him for being strong and speaking out on what they believe. But he so clearly is a Johnny-come-lately to those beliefs. And his whole demeanor is so off-putting and his concept of what it would take to govern is so idiotic, yet people seem to buy the entire shtick. I just find it very depressing.

John Kasich was able to camp out in New Hampshire much the same way almost the way that Jimmy Carter camped out in Iowa in 1976. He was able to appeal to independents and to skate above the fray because his opponents didn't seem to realize that he was surging and so they didn't attack him. They were all too focused on attacking Rubio. Well, that worked out in bringing down Rubio, but it didn't help Christie; it just left a path for Kasich to win second. But he doesn't have much of an operation outside of New Hampshire and now he has to go into the South where he won't be able to use independents. Maybe he'll attract some of the donor class money that was betting on Rubio as the most electable. But his opponents will make sure that he'll now have to answer for how he instituted Medicaid expansion in his state by going around his legislature. And just talking about how he'll be able to go through the Pearly Gates and those who oppose Medicaid expansion won't will not, I expect, sell all that well in the South. Jay Cost argues that Kasich could maybe lose in the South and still put together wins in the northern states, particularly the ones that go on March 15 when the primaries are winner-take-all.
It's a highly unlikely angle. He will probably struggle to raise the funds he'll need. But if he holds on somehow, while Rubio and Bush pummel each other to pieces, and the party is staring at either Trump or Cruz, the money might swing to Kasich.

Isn't the Kasich case at least as persuasive the Bush case? Bush has spent tens of millions of dollars, only to finish less than one point better than Kasich in Iowa, and four or five points worse than Kasich in New Hampshire. The only thing Bush has going for him is money—but money runs out.

The Bush team is surely satisfied to have defeated Rubio tonight, but the obsession with the junior senator from Florida masks a glaring weakness so far exhibited across the two states, and indeed the national polls: Republican voters so far do not seem willing to give him a serious look. If Rubio fails to right the ship, and Bush continues to struggle, why can't the money go to Kasich eventually? And if the money goes to him, why can't the votes?
It's the path that Rubio was hoping to take, but now faces more barriers than he anticipated having. Perhaps Kasich could swing into the lead in that so-called establishment lane.

Jeb Bush lives to fight another day. Perhaps he's recovered his stride and his brother's and Lindsay Graham campaigning for him in South Carolina will help him there. I don't see it, but I've given up having any sense of what Republican voters want. I think the real victor in the GOP race other than Trump was Cruz who certainly beat expectations that he couldn't finish in the top three in New Hampshire. Perhaps he got some of the libertarian support that Rand Paul would have garnered if he were still in. And he probably also benefited from Rubio's fall. He hardly campaigned in New Hampshire and spent only $600,000 compared to the $36 million that Bush and his super PAC spent and the $15 million that Rubio spent. Bush can be happy that he is not dead yet, but will he be able to do better than fourth place? I don't think so. And remember that Bush was predicting for a long time that he was going to win there.

I don't know if Rubio can recover. His speech struck the right tone of humility and determination, but we'll see if the bell can be unrung on that debate performance. My feeling was that the performance wouldn't matter as much as weeks passed if he can dispel the accusations of being robotic. There's actually another debate on Saturday night in South Carolina. He'll have a chance to demonstrate that last Saturday's debate was an anomaly. We'll see if he can do it. And we'll see if Christie is still in the race but he, at least won't qualify to be in the SC debate which will feature only the top five candidates from New Hampshire as well as the top three From Iowa and the top five in the average of national polls. As Roger Simon writes, "Karma's a bitch." Simon recounts observing Rubio in some private moments with his kids and at a hotel in New Hampshire and concludes that "Marco Rubio is a helluva nice guy." Well, we all know where nice guys finish in politics.

Or will Bush and Cruz pick up the slack? It seems that the Rubio and Bush campaigns are ready to attack each other in a bloodbath in South Carolina. That may just help Cruz there. Maybe the support of Tim Scott and Trey Gowdy will help him in South Carolina but he'll have to dispel the sense that his moment may just have passed.

And with Cruz, Bush, Kasich, and Rubio battling it out, Trump will float above it all like the bloviating buffoon that he is.

I'm used to voting for the candidate whom I dislike the least. Never have I felt that so keenly as I do this year.

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I feel so depressed over the state of the Republican race that I can't even fully enjoy the schadenfreude of Hillary's humiliation. But it is delicious to see her dishonesty finally bringing her down. And she brought it all on herself. She's the one who decided that she needed a private server to keep her emails secret from FOIA requests. She's the one who, with her husband, focused so much on making money that they ignored how it would look to get huge speaking fees from Wall Street firms or companies and countries who had business before the State Department. The chickens that are coming home to roost could fill the KFC daily supply.

And now they head into the South where the last card Hillary has to play against Bernie is the race card since that whole gender unity doesn't seem to have worked for her. Politico examines how the Democratic primary is "about to get racial."
If Sanders is truly going to become a Barack Obama-style Clinton-slayer of 2016, he knows he’s going to need to start racking up Obama-level support among non-white voters, and quickly, because the Democratic primary is about to come down to race.

The Sanders campaign understands this, which is why the first campaign stop after his blowout victory in New Hampshire is a breakfast meeting Wednesday with the Rev. Al Sharpton in Harlem’s iconic Sylvia’s restaurant.
Sanders, who represents the overwhelmingly white state of Vermont in the Senate, has yet to prove he has the ability to win minority voters -- a critical component of the Democratic Party coalition. He’s said he’s confident non-white voters would come to him once they heard his message -- and aides consistently repeat that claim – but his close defeat in Iowa and landslide win New Hampshire, two states that are just as white as Vermont, haven’t answered any of the questions.

The next two early states to vote, Nevada and South Carolina, have much larger Latino and African American populations, which means he no longer has the luxury of appealing to his base of white liberals.

“He can’t get there from here. She can win with everything he’s got,” said Joe Trippi, who faced a similar problem when he was trying to figure out the math for the 2004 campaign of Howard Dean, another Vermont liberal popular among white progressives, but one who didn’t have a primary opponent with the kind of strength among African-Americans and other minority voters that Clinton’s shown in 2008 and so far in this race.

“Once you leave New Hampshire, the Democratic Party is 44 percent non-white,” Trippi said. “What Iowa should have told everybody is that they’re probably going to dead heat each other among the 56 percent of white Democrats—and that’s probably being generous to him, because of all the conservative and moderate white Democrats elsewhere around the country.”
Ugh. If we thought the way that Hillary tried to shame women into voting for her, wait to see two old white candidates pandering to minorities.

This whole race is going to get a whole lot uglier before we achieve any clarity. And I anticipate more days where I feel as depressed about our political system as I do today.