Friday Talking Points -- Ranting Back at Orrin Hatch

WASHINGTON, USA - FEBRUARY 11: Senator Orrin Hatch speaks during a press conference on the Internet Tax Ban and Customs Repor
WASHINGTON, USA - FEBRUARY 11: Senator Orrin Hatch speaks during a press conference on the Internet Tax Ban and Customs Report in Washington, USA on February 11, 2016. (Photo by Samuel Corum/Anadolu Agency/Getty Images)

It's not often during a presidential election season that the campaigns get shoved aside in the political universe because something bigger happened, but that is what took place last week with the unexpected death of sitting Supreme Court Justice Antonin Scalia. The implications for the future of America run deep, which is why it has already become a monumental and historical political fight.

The immediate ramifications are obvious. We will have only eight justices voting on all of this year's cases, and probably most of next year's as well, if the Republicans follow through with their plans of obstructing anyone Obama names. The only other way out of this mess is if President Obama were to make a recess appointment some time this weekend, which is a longshot at best (although the White House notably hasn't completely ruled such a thing out).

However, we're only going to mention the political fray over the upcoming nomination and confirmation fight in passing, because we are devoting our talking points section this week to a full-on rant about the Republican position espoused most inanely by Senator Orrin Hatch (who really should know better). Also, we devoted two articles earlier this week (on Monday and Tuesday) to how we think all of this is going to play out politically. We'll have many weeks to hash the whole situation over, precisely because this is such a political earthquake.

A lot else happened in the political world (and the presidential campaign) this week, so much so that we're going to have to resort to incredibly condensing it all here. Any other week, these stories would have merited more attention, but this week the best we can do is to just mention them all in passing. So buckle your seatbelts, because we're going to have to move quickly.

President Barack Obama announced he would be travelling to Cuba next month, to get the photo op he deserves after thawing the half-century freeze in diplomatic relations. Republicans' heads everywhere exploded, right on cue.

On the Republican side of the presidential race, Jim Gilmore formally dropped out a week ago, becoming the eleventh candidate to do so (leaving only six). Much to our embarrassment, we didn't even realize Gilmore had ended his run until this week, when Stephen Colbert mentioned him in his "Hunger Games" parody (saluting "the fallen"). We immediately checked, and Gilmore had indeed withdrawn. That is the ultimate statement about his entire campaign, in fact -- when it ended, hardly anybody even noticed. We certainly didn't, at the very least.

The Republican campaign week began with an absolute knife-fight of a debate last Saturday, one of the more vicious examples of Republican-on-Republican violence ever televised, at least in our memory. By week's end, Donald Trump was threatening to sue Ted Cruz and Cruz responded with: "Bring it on -- I'll depose you myself, Donald!"

It was rather hilarious to see all the Republicans get the question: "If you become president and a Supreme Court nomination opened up in your final year in office, would you nominate someone?" It really put the lie to everything else Republicans are saying about the situation, in fact, sometimes in hilarious fashion.

Marco Rubio tacked even further to the right on immigration, announcing he'd end the deferred children policy of President Obama on his first day in office. No matter who emerges as the Republican nominee, he's going to have the same problem Mitt Romney had four years ago, as the primary season forces all the GOP candidates further and further towards the extremes. Rubio also released an ad this week copying Ronald Reagan's famous "morning in America" ad, but inexplicably used film footage of Vancouver in the middle of it (hint to Marco: morning in Canada, maybe?). It was also revealed this week that Rubio skipped almost half the meetings a special Florida committee held after 9/11 -- something which is sure to come up in the next Republican debate when Rubio tries to claim he's got more foreign policy chops than anyone else.

Jeb Bush is about to crash and burn in South Carolina, which might even be the end of the road for his campaign. He's in a tight race (no, really) for fourth place right now, trying to edge out the "surging" John Kasich. After failing for the third time to even crack the top three, the pressure on him to get out of the race is going to become enormous, so he might exit even before Nevada votes. Or he might hang in there, he's certainly still got the money to do so.

Ted Cruz is fighting hard to remove the horrors of gluten-free meals for our troops. Seriously, you just can't make this stuff up, folks.

And to cap off Republican campaign news, Donald Trump and the Pope got into a fracas. So much ink has already been spilled over this fight, though, that we're just going to mention it in passing and move along.

In a bit of rare crossover election news, a supporter of Bernie Sanders is auctioning off a copy of Das Kapital by Karl Marx signed by Carly Fiorina. Again, you couldn't make this stuff up if you tried! Seems the owner of the book went to school a long time ago with Fiorina and had her sign it years ago, as a kind of joke. Now he's going to sell it and send the profits to Bernie Sanders. How ironic! Bidding was up to $690, as of this writing.

In other bizarre "Who are you, and what have you done with...?" news, Charles Koch penned an op-ed for the Washington Post which (are you sitting down?) agreed with Bernie Sanders that our political system is being bought and sold and is thus rigged against the little guy. No, really!

There's a war being waged among economists who support Hillary Clinton and those who support Bernie Sanders, and it's getting pretty vicious. The Clintonistas trashed an economic analysis that said Bernie's economic plans would work great for America, but they didn't actually rebut any of the analysis with specifics, which led to some bad blood. On Bernie's side, renowned (and popular, among liberals) economist Thomas Piketty came out strongly for Bernie's vision of the future.

On the Democratic side, Nevada votes tomorrow night, and the results are absolutely unpredictable (mostly because pollsters ignore Nevada so there is not much data to go on, and it could easily be wrong). Bernie is either tied, down one point, or down six points -- that is the sum total of all the polling that has taken place in Nevada all year (more polls were released in a single day for Iowa or New Hampshire, by comparison). Nevada could swell Bernie's momentum, or it could be the beginning of Hillary's firewall, so it'll be a closely-watched caucus night. Turnout is going to be key, but even the locals have a hard time predicting what'll happen.

And finally, the Democratic side has its lighter moments as well. In Nevada (where such things are legal, we might add), a "Hookers for Hillary" website has appeared. But even this constituency isn't assured, as not all Nevada hookers are on board with the effort. In other (perhaps) Valentine's Day related news, there is now a website called for supporters of Sanders to meet each other, but the site reportedly keeps crashing because it's getting so many visitors, so make of that what you will.


This is an odd one, we fully admit before we even begin. Representative Alan Grayson has always been known for pushing the boundaries of political thought. Whether you agree with him or not, he certainly is interesting to watch in action.

This week, he let it be known that his "superdelegate" vote in the Democratic National Convention is up for grabs and will go to whichever candidate wins his online poll.

A good idea? A bad idea? Well, it's certainly a radical idea, that's for sure! But then we'd expect no less from Grayson, really.

Superdelegates are about to be big news, once again. The last time they were big news was the last time Democrats underwent a hard-fought primary fight. They are, inherently, a corruption of what is supposed to be a (small-D) democratic process. All the Democratic voters in all the states only get 85 percent of the decision at the national convention. The other 15 percent goes to "superdelegates" -- all the officeholders and party stalwarts that get a free vote in the nominating process. Republicans don't use this system, making them (say it quietly) actually more democratic than the Democratic Party.

Grayson isn't a fan of this state of affairs, so he's making a point. He's democratically offering up his vote to whoever is more successful stuffing his online ballot box. OK, that's a cynical way to put it, but then again we've seen how lopsided such online voting can get at times (anybody remember Ron Paul's online legions?). Even with that caveat, though, Grayson certainly is drawing attention to the problem long before it becomes a big battleground between Team Hillary and the Bernie revolution.

For creatively drawing attention to the issue, and for his attempt at making his one superdelegate vote somewhat accountable to the democratic process (as naive as that attempt may be, with online voting), we have to give the Most Impressive Democrat Of The Week award for sheer creativity to Representative Grayson.

[Congratulate Representative Alan Grayson on his House contact page, to let him know you appreciate his efforts.]


Last week, we handed out the Most Disappointing Democrat Of The Week award to a Hillary Clinton surrogate. This week, we're awarding the MDDOTW to a Bernie Sanders surrogate.

The rapper "Killer Mike" is a big Bernie supporter. In a speech to a crowd recently, he used a word that many have taken him to task for. No, it's not an obscenity. It's not even a bad word in any way, in fact. The word he used was "uterus." The context wasn't as awful as many immediately claimed, but the optics were bad enough. Here is the full text of what Killer Mike said that got him into so much trouble:

I talked to Jane Elliott a few weeks ago and Jane said, "Michael, a uterus doesn't qualify you to be President of the United States. You have to have policy that's reflective of social justice." Paying women a fair wage is social justice. Making sure minorities have jobs is social justice. Ending a bullshit drug war is social justice. Making sure our children can go to college is social justice.

He's making a point, and he's using a quote from a feminist to do it. He's saying gender politics shouldn't be valid -- women shouldn't feel they have to vote for the Democratic woman running, just as they wouldn't have felt they had to vote for Carly Fiorina if she had won the Republican nomination. Gender politics, Killer Mike (and Jane Elliott) is saying, is not enough. By extension, the core argument is that Bernie Sanders is stronger on social justice than Hillary Clinton. Killer Mike is a Bernie supporter, so that's the argument he was attempting to make.

Now, we're going to have to split hairs on this one. Killer Mike was immediately raked over the coals for "being sexist." The only way you can intellectually make this argument, however, is to say that Jane Elliott is a sexist, since she's the one who brought up uteri in the first place. To make it a non-sexist argument it would have to be parsed to something like "having a uterus does not qualify you -- and certainly does not disqualify you -- to be President of the United States." Gender just should not matter, in other words. In fact, when Elliott was asked about the reaction, that's exactly what she said:

I think the reaction is because a man said what I said. If a woman had made that statement there would have been no problem, but because a man said it, it becomes a sexist statement. It's a ridiculous thing to be upset about. It should be a fact of life that neither gender nor skin color should determine whether you are appropriate for leadership of the government of the United States of America.

However, it does indeed depend who is making this argument, for the same reason why African-Americans feel that the "n-word" should never be used by people who are not black. People within the group get to decide the allowable language. People outside the group do not.

Killer Mike didn't say anything sexist, he merely repeated what a woman said to him. Jane Elliott may or may not have said something sexist, but we leave that for women to decide. Which is entirely our point. This entire fracas -- really an extension of the fracas from last week involving Madeline Albright and Gloria Steinem -- should be hashed out among women.

This is the reason Killer Mike wins this week's Most Disappointing Democrat Of The Week -- because he was guilty of "mansplaining" an issue to women. Not for using "uterus" (which is ridiculous on the face of it), and not for somehow demeaning all women or reducing them to anatomical terms. If either of those things were done in sexist fashion, then the only person guilty of doing so is Jane Elliott herself. But by repeating the quote -- when he could have made the argument in other ways -- Killer Mike is guilty of wading into a fray that he really should have kept out of. For mansplaining the issue, Killer Mike is our Most Disappointing Democrat Of The Week.

[Killer Mike is not a political figure, so we suggest you contact the Bernie Sanders campaign if you'd like to let them know what you thought of Killer Mike's phrasing.]


Volume 379 (2/19/16)

As previously mentioned, we are pre-empting our talking points this week to present to you a rant, instead. Every so often the mood strikes us to make a more cohesive argument than can fit inside the confines of one (or even seven) talking points. This is one of those weeks.

The death of Justice Scalia has prompted much idiocy on the Republican side of the aisle, which was to be expected, really. The conservatives see the horrific (for them) possibility of losing their decades-long edge on the court and facing the nightmarish (again, for them) possibility of all those 5-4 decisions suddenly going in the liberal direction instead. So they panicked.

Even Republicans who are normally a lot more thoughtful about such things have already joined the obstructionist ranks demanding that the Senate not even hold hearings on any Obama nominee. The worst of these came from Senator Orrin Hatch, which was what prompted this rant. Without further introduction, here's what we have to say in response.


My Supreme Court nomination rant, in response to Orrin Hatch

This was a monumental week in American politics, due to the death of Supreme Court Justice Antonin Scalia. For the first time in decades, the balance of power truly hangs in the balance of the next appointment to the court. Instead of a liberal president replacing a liberal judge or a conservative president replacing a conservative judge, we have the prospect of a true shift in the ideological makeup of the highest court in the land. This could have repercussions which last for the next generation, and that's (if anything) understating its importance.

I noticed this possibility about two years ago, when the Democrats were facing the prospect of losing control in the Senate in the 2014 midterm elections (which did come to pass). At the time, some were pushing Ruth Bader Ginsburg to immediately resign, so President Obama could replace her with a liberal and get the Democratic Senate to confirm his choice. At the time, I pointed out that it would be the next few Supreme Court picks which would really matter -- making the 2016 presidential election critical.

Now that we've reached this juncture, I'm reminded of a science fiction novel about a legal system on an alien world. The book is The Dosadi Experiment, written by Frank Herbert (of Dune fame). He defined his alien legal system in bizarre fashion (just one fun fact: everyone in the "courtarena" spoke at risk of their life -- even a judge could be executed, if the proper legal forms had been followed). But one bit has always stuck with me -- the fine distinction between "bias" and "prejudice." Here's the relevant passage, describing what "Gowachin Law" allowed:

The interpretation of bias was: "If I can rule for a particular side I will do so."

For prejudgment: "No matter what happens in the arena I will rule for a particular side."

Bias was permitted, but not prejudgment.

There are two reasons I was reminded of this in all the aftermath of Scalia's death. The first is that not everyone is celebrating Scalia for being some sort of intellectual and moral giant on the Supreme Court. Far from it. Some, in fact, put Scalia in the worst three justices in all of American history. Some "memorialized" him by pointing out some of the worst things he's ever said or written.

Justice Scalia was, to be blunt, biased. Even his admirers would have to admit that, at least if they're honest with themselves. Scalia would rule for the conservative argument without regard to any "original intent" -- in fact, he would bend his concept of "original intent" to fit whatever judgment he deemed the correct one. His detractors would go further, and state that Scalia also fit the Gowachin description of being prejudiced as well. Either way, the concept that Scalia was some paragon of fairness is pretty laughable on the face of it.

His replacement will be political, because the Supreme Court is a political battleground, and has been for as long as I've been alive. Even since long before my birth -- check out the history behind the slogan "Impeach Earl Warren" if you don't believe me. The Supreme Court is the final arbiter of all the nastiest and ugliest political fights of the day, so of course it is political. 'Twas always thus.

What is stunning, however, is the argument Republicans are now making -- that somehow President Obama is not really entitled to appoint Scalia's replacement, since we are nine months away from an election. The stunning part is that this is a naked attempt to reinterpret the Constitution, something Scalia supposedly lived his whole life fighting against.

In even making the argument that no nominee from the sitting United States President will even be considered by the Senate, the Republicans have firmly placed themselves on the side of prejudice. They are literally pre-judging that any Obama nominee will be unacceptable. By doing so, they have made the leap to politicizing not just the Supreme Court, but the very process used to seat supposedly neutral arbiters of the law. They are dragging down the entire process into the swamp of politics and stripping bare any notion of allowing the elected president to -- as the Constitution states -- have his choice of seating a well-qualified candidate, no matter what his or her political leanings may be.

My rant today was inspired by much of the nonsense being spouted by Republicans at the moment, but most especially by Senator Orrin Hatch, who is normally a little more in touch with reality (as opposed to, in Scalia's own charming terminology, spouting "pure applesauce"). Here is Hatch, a powerful member of the Judiciary Committee, being interviewed on the PBS NewsHour recently:

And so I do support Sen. McConnell in saying, but, look, let's get it out of this terrible presidential brouhaha that is going on, and let's get it over to the next year, and be fair to both sides, because what would happen is whoever wins the presidency is going to be able to make this nomination.

Usually, you never nominate anyone during the last year of a president. And the reason for that is because -- well, there are many reasons, but one reason is because there's always a very contested Senate primaries and also election, and, secondly, generally, one side or the other is going to get very, very upset about it.

Well, I'm saying the Republicans shouldn't act on it, because the proper way is to get this done in a way that cools the whole process around electing judges, and in particular justices to the United States Supreme Court.

I just don't want the court politicized. And this would be the biggest politicization the court in history. And that is saying something, because there have been some other times that certainly would come close to matching this.

But, in all honesty, I just don't want to see the court denigrated any further than it would be in this very caustic election year with the way things are going right now.

There is such a mountain of nonsense contained within these statements, it's going to take some serious unpacking. We'll do so one section at a time, by addressing Hatch directly, point by point.

First off, what in the Constitution gives you the right to move a Supreme Court justice selection "out of this terrible presidential brouhaha"? Seriously, what gives you that right? Supreme Court nominations and confirmation battles in the final year of a president's term have happened literally dozens of times in our history. Sure, it's fairly rare for it to happen -- it doesn't happen for every president. But it has happened plenty of times before. Sometimes the nominees were confirmed, sometimes they weren't, but nobody ever before argued that they flat-out shouldn't happen because of an upcoming election.

Second, how is punting a Supreme Court nomination "over to the next year" -- really meaning "over to the next president" -- supposed to be "fair to both sides"? In fact, it is fair to neither side. Court nominations are almost always inherently unfair to one party the other. Please name even one Supreme Court appointment that was in any way "fair to both sides." And are you so confident that America is going to elect President Trump? What happens if President Clinton or President Sanders is sworn in next January? Are you going to then say "let's be fair and confirm anyone the new president selects who is legally qualified"? I truly doubt that. In fact, Democrats have a good chance of taking the Senate back -- are you going to call the process "fair" when they then remove the filibuster for Supreme Court justices? Your delaying tactics now are pretty much going to guarantee that will happen, if control of the Senate switches. So are you going to side with the voters who elected more Democrats to the Senate then, as you now seem to be suggesting you'll cheerfully do? Don't make me laugh.

Your second paragraph is also pure applesauce. The main reason presidents "usually" never make Supreme Court nominations during their last year is that they usually don't get the opportunity. That's it, plain and simple. Why has no president done so for decades? Because there have been no court vacancies during a final presidential year for decades -- that is the only reason. Period.

You can even turn this around. Name me one president -- in all of American history -- who said "I am going to defer nominating a Supreme Court justice to the next president, because I think it's only fair to do so" or anything even remotely similar. I'm not exactly going to hold my breath waiting for you to come up with an example, to put it mildly, because such a thing has never actually happened.

As for "one side or the other is going to get very, very upset about it," see my previous comments on the inherent unfairness of one political party watching a president from the other party make any Supreme Court nomination. As the lawyers say, "Asked and answered." Half the country is going to be very upset indeed over whomever replaces Justice Scalia -- that's just a fact of American political life. Deal with it.

Your third paragraph is just downright laughable, Senator. Your proposal that "cools the whole process" of Supreme Court nominations is to throw it completely into the white-hot political heat of a presidential election? Really? That's supposed to cool things down? In what universe, precisely?

Your biggest glaring disrespect and disregard for the United States Constitution slips out in your own language, too. You use the phrase "the whole process around electing judges." Maybe you should check that Constitution all good Republicans are supposed to carry around in their pockets, because I've actually read the document and you know what it says? Judges are not elected in the United States of America. Federal judges -- all of them, up to and most certainly including the Supreme Court -- are appointed by the president, and confirmed by the Senate. The voters have zero direct input into the process at all -- by design. The original intent -- remember this concept? -- is that the voters have only an indirect say, in the election of the president. Originally, they only had a twice-removed say in the Senate, because originally senators were selected by state legislatures -- the voters didn't even get a vote on them at all. The selection of judges was never meant to be at the whim of the voters, which you could tell if you ever actually thumbed through the Constitution itself.

You obviously don't know much about the history of the Constitution or of the Supreme Court. You display your profound ignorance by your statement that having a sitting president nominate a Supreme Court justice in the final year of his term (something that's happened repeatedly) "would be the biggest politicization of the court in history." This is just balderdash. Depending on how you define your terms, the biggest politicization of the Supreme Court was either Marbury v. Madison, Andrew Jackson's naked defiance of the court, or Franklin Roosevelt's court-packing fight. This doesn't even come close to the impact of any one of those three events. It's not even in the same ballpark. In fact, the only thing I could think of which would indeed be "the biggest politicization" of the Supreme Court ever would be the abdication of the nomination and confirmation of Supreme Court justices to the presidential election. By definition, this would be "politicizing" the nomination. From this point on, whichever political party holds the Senate would argue that they'd have to wait until a president of their party was in office before confirming anybody -- no matter when they were nominated. Republicans refusing to even consider President Obama's nominee would politicize the confirmation process for all time in a way it has never been before. So you're doing exactly what you're arguing should not be done.

Finally, to even suggest that the process the Constitution lays out somehow "denigrates" the court is absurd, because what you are suggesting is replacing what should be a few months of a confirmation battle with the issue being front and center for the entire nine months of the election, plus all the months it'll take after the new president is sworn in before the process finishes.

And be careful about your final thought, too. "The way things are going right now" is that your party seems on the brink of nominating Donald Trump. Ask yourself this: would a Trump nominee get confirmed any easier than an Obama nominee? Or how about a Clinton nominee or a Sanders nominee? Think that might be easier to swallow than doing your constitutional duty right now and holding a confirmation hearing on the sitting president's choice? Because that is indeed the way things are going right now. So you certainly better be ready for such outcomes if you're going to roll those particular dice.


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