Friday, June 24, 2016

Brexit and the Unraveling of Peace Through Prosperity

by Neil H. Buchanan

Although polls indicated that the British referendum on leaving the European Union was likely to be a fairly close vote, somehow it did not seem possible that the vote could go the wrong way.  Maybe the surprisingly lopsided defeat of the 2014 Scottish independence vote made people too comfortable.  Maybe it was the sense that considerations of actual self-interest would somehow dominate paranoia and chauvinistic fantasies.  In any case, we wake up today to the shocking reality that the UK has actually voted to leave the EU.

My first thought upon reading the news -- that is, my first coherent, not oh-my-God-what's-happening, thought -- was that this is the most potent example yet that my biggest fear might be coming true, that the Great Recession and its aftermath have set in motion what could well become the disintegration of liberal democracy in the world.  Yes, that sounds like apocalyptic overstatement.  It now looks more plausible than ever.

It should be said that soon-to-be-former Prime Minister David Cameron deserves credit for fighting on the right side of this referendum.  True, he has been justly criticized for creating this problem, agreeing to the vote to mollify extreme members of his party while imagining that nothing could possibly go wrong.  Even so, he did campaign aggressively for the "Remain" side, which is what he should have done.

But if ever there were a case of too little, too late, this is it.  Cameron personified the disastrously smug response to economic despair that we have seen among conservative politicians in the UK, Europe, and the US ever since 2009 (and, really, since at least 1979 with Margaret Thatcher's election as British Prime Minister, soon followed by Ronald Reagan's presidency here).  Rather than try to deal with the ravages of the Great Recession, Cameron and others insisted on unlearning the hard-earned lessons of the Great Depression and decades of evidence and experience.

People are unemployed?  Not to worry, Cameron and his allies assured the world, because all we need to do is rely on "expansionary austerity" -- the completely evidence-free idea that all the private sector needs is for the government to cut spending, ushering in a wave of business investment that would more than make up for the government's retreat.  Why would businesses invest in a failing economy?  Confidence!

The Confidence Fairy never arrived, and workers everywhere paid the price.  Cameron was hardly alone, of course.  The Germans have taken the lead in forcing even more crippling austerity on weaker countries across Europe.  Chancellor Angela Merkel, who also deserves some credit for being less extreme than others in her country, similarly imagined that the biggest problem facing Europe was excessive government spending.

Now, with the Brexit vote on the books, the long-suffering Greeks are understandably talking about finally getting out from under Berlin's misguided policies.  And Scotland, which voted overwhelmingly for Remain, will now seriously reconsider breaking off from Britain.  In a few short years, regions and countries could break up, with borders sealed off and problems elsewhere left to fester.  An analogy to gated communities is tempting, but the atmosphere is hardly one that would call to mind anything resembling a community.

In some ways, Cameron and Merkel are "lite" versions of Republican leaders in the U.S., thinking that they could contain the nihilists in their ranks rather than being consumed by them.  Five years ago, I pondered what the billionaires who bought the Republican Party must have been thinking as the new Tea Party-led majority in the House rushed toward what turned out to be only the first of many debt ceiling showdowns.  None of this can be what the oligarchs had in mind, but these political crises are the inevitable result of what they set in motion.

Which explains, I think, why Donald Trump immediately treated the result of the Brexit vote as nothing but good news.  If logic mattered at all, Trump should not care about that issue.  What, after all, does it have to do with making America great again?  Having a dysfunctional, but intact, European Union is arguably actually better for the U.S., but it is at least not obvious how we would gain from the breakup.

But Trump knows that his power stems from the spreading of hatred and fear, and so he cheers for those who play the same disgusting, cynical game that he plays.  Sure, it might turn out that the collapse of the European Project could result in economic damage to the U.S. and even in the spilling of more blood in Europe and elsewhere, but why should Trump care?  The people who blame problems on Others are on the march, and Trump believes that that is good for him.

One of the more bizarre comments on the Brexit vote was offered in a New York Times news article (not an editorial) published immediately after the votes had been tallied.  The reporter wrote: "The British campaign featured assertions and allegations tossed around with little regard to the facts. Both sides played to emotion, and the most common emotion played upon was fear."  Can you smell the false equivalence coming?
"The 'Remain' side, citing scores of experts and elite opinion, warned that leaving the bloc, a so-called Brexit, would mean an economic catastrophe, a plunging pound, higher taxes, more austerity and the loss of jobs.

"The Leave side warned that remaining would produce uncontrolled immigration, crime and terrorism, with hordes pouring into Britain from Turkey, a country of 77 million Muslims that borders Syria and Iraq and hopes to join the European Union."
This is simply bizarre.  The two sides "played to emotion" because they both said that people have reason to fear the results of leaving or remaining.  But the fear that the Leave side was peddling was based on a never-ending onslaught of lies, from the false claims about the costs of the UK's membership in the EU to Trump-like assertions about terrorists pouring across the border.

John Oliver's "Last Week Tonight" this past Sunday brilliantly exposed the lies of the Leave campaign.  (Video available here.)  The problem is that the British press has spent decades stoking Englishmen's fears and hatreds toward Europe, which English expat Oliver also hilariously lampooned with a series of off-the-cuff putdowns of random European countries.  As Oliver would be the first to say, however, this is not funny.

Meanwhile, what is the fear that those Remain agitators were stirring up?  Apparently, they irresponsibly "tossed around" some "assertions and allegations" from those "scores of experts" who were saying that Brexit "would mean an economic catastrophe, a plunging pound, higher taxes, more austerity and the loss of jobs."  I guess it is possible that those experts will all be proved wrong, but this is simply not the same as fear-mongering.  It is a logic- and evidence-based assessment of the negative consequences of leaving the EU.

If one person tells you that he is afraid of the consequences of being shot in the face, while another person tells you that he is afraid that stepping on a crack will break his mother's back, are they both merely being emotional?  There is a difference between healthy fear and irrational fear, after all.

Obviously, all is not lost.  This could be a wake up call to those who have allowed themselves to believe that the emergence of fear-mongering, naked lies, and appeals to people's worst nature are merely an unfortunate spasm of temporary insanity.  Maybe even some conservatives will now remember that people are least generous when they are economically insecure, and that ungenerous people can easily be incited to do things that are dangerous for themselves and the world.  We can hope.

Thursday, June 23, 2016

In Fisher II Justice Kennedy Finally Puts His Vote Where His Rhetoric Was All Along

by Michael Dorf

At the end of a Supreme Court term, the law clerks put on a show in which they depict the justices, gently (or not so gently) poking fun at their bosses' personal foibles and jurisprudence. These are not public events and so what we know about them comes from leaks from a very unleaky institution. Nevertheless, a story is told that one year the law clerk portraying Justice Sandra Day O'Connor sang a song to the tune of the Rolling Stones' "Beast of Burden" with the lyrics "I've never seen an undue burden." The idea was that although Justice O'Connor's concurring and dissenting opinions in abortion cases had suggested that abortion restrictions would be invalid if they constituted an "undue burden," she had voted to uphold every abortion restriction to come before her. And that was true, until 1992 when she joined with fellow Republican-appointed Justices Anthony Kennedy and David Souter to co-author an opinion (joined in key parts by two other Republican-appointed Justices, Harry Blackmun and John Paul Stevens) striking down one provision of a Pennsylvania abortion law as an undue burden. We will find out next week whether the version of the undue burden test adopted in that case--Planned Parenthood v. Casey--invalidates the Texas law being challenged on the ground that its health justifications are pretextual at best. But for now I want to note that what happened in Casey for Justice O'Connor was a put-up-or-shut-up moment. Having led Court watchers to think that she was at least potentially open to retaining abortion as a constitutional right, Justice O'Connor finally got off the fence and proved it.

While we wait for the Texas abortion case to come down (probably Monday of next week), let us turn our attention to another Texas case. Not the anti-climactic non-decision in the immigration case that leaves millions of undocumented immigrants in the shadows until there is a ninth justice appointed by President Clinton or President Trump's storm troopers round them up, but the dramatic ruling this morning in Fisher v. University of Texas at Austin (Fisher II).

With Justice Kagan recused in Fisher II, the Court ruled 4-3 that the limited use of race in admissions by UT is constitutionally permissible. The majority opinion in Fisher was written by Justice Kennedy, and the case was for him with respect to affirmative action what Casey was for Justice O'Connor with respect to abortion (although Casey was also that for Justice Kennedy). In prior affirmative action cases--especially in his dissent in Grutter v. Bollinger and his concurrence--concurrence in the judgment in Parents Involved in Community Schools v. Seattle School Dist. No. 1--Justice Kennedy had said that he accepts that diversity is a compelling interest in education and that he was unwilling to treat the Equal Protection Clause as proscribing all use of race by government. But like Justice O'Connor with respect to abortion in her pre-Casey days, Justice Kennedy sometimes gave the impression that he was all talk, because before today, he voted to strike down every race-based affirmative action program to come before him as a Justice.

Before today. Justice Kennedy's opinion in Fisher II will no doubt be read as narrow, and in important ways it is. He warns at the end that UT should not take the Court's decision as authorization to use its existing program indefinitely. The evaluation and re-evaluation of the need for race to achieve the university's goals that play a crucial role in rejecting Fisher's challenge must continue. Other colleges and universities are now on notice that they too may need to be pro-active in continually reassessing the use of race in their admissions programs.

That said, Justice Kennedy's opinion is, in many ways, quite broad. He repeatedly points out that the "Ten Percent" program in Texas makes the case unusual. (Quotation marks indicate that with a 75% cap on enrollment under the program, it's now more like a seven percent program.) Perhaps more importantly, Justice Kennedy favorably cites Justice Ginsburg's observation in the first Fisher case (Fisher I)  that while formally neutral, the percentage plan was “adopted with racially segregated neighborhoods and schools front and center stage.” This is an important signal that the Court will not require state universities to adopt percentage plans or to try them before resorting to holistic review that includes race.

In addition, Justice Kennedy recognizes how the Court's prior cases set up a seeming Catch-22. On the one hand, if race is too big a factor, then the program is not narrowly tailored. On the other hand, if its use only makes a small difference, then the program is also not narrowly tailored. Justice Kennedy rejects this heads-I-win-tails-you-lose rule, treating the relatively modest use of race by UT as appropriate and as evidence that UT really is trying to achieve diversity through race-neutral means as much as possible. Likewise, Justice Kennedy does not fault UT for failing to precisely quantify such goals as diversity or critical mass, rightly recognizing that this too is a trap, given how unfavorably the Court's prior cases treat any effort to convert the benefits of racial diversity into a number.

Justice Alito is thus not wrong in his dissent when he says that UT failed to meet an apparent requirement of Fisher I.  Justice Alito writes: "The University has still not identified with any degree of specificity the interests that its use of race and ethnicity is supposed to serve." But given that this is a trap, to the extent that Fisher I required such "specificity," i.e., quantification, Justice Kennedy is surely right in Fisher II to move away from such a requirement. Justice Alito's conception of a specificity requirement is really nothing more than a way to disguise a rule that categorically disallows race-based affirmative action. But if that's the point, then he (and CJ Roberts) ought to say so expressly, by joining Justice Thomas, whose separate dissent calls for categorical color-blindness.

To be fair, although Justice Alito and CJ Roberts have previously purported to apply Grutter, they have never said that they think it was rightly decided. Justice Kennedy did, after a fashion. Although he dissented in Grutter because he thought that the University of Michigan Law School's program was not actually narrowly tailored, he agreed in principle that diversity in higher education is a compelling interest that can justify a narrowly tailored program of race-based affirmative action. He paid what was at least lip service to that idea, which has now been part of our law for 38 years (since the Bakke case). Today, Justice Kennedy showed that it was more than lip service. His Fisher II opinion puts his vote where his rhetoric was all along.

Wednesday, June 22, 2016

The Questionable Utility of Life Without Parole for Juveniles

By Sherry F. Colb

In my Verdict column for this week, I discuss the Supreme Court case of Montgomery v. Louisiana. Montgomery held that the case of Miller v. Alabama, which held that mandatory life without parole ("LWOP"), when imposed on juvenile offenders, violates the Eighth Amendment ban on cruel and unusual punishments, must be applied retroactively on state collateral review to cases in which the convictions at issue have already become final.  This meant, in Montgomery itself, that a 69-year-old man who was sentenced mandatorily to life without parole about 50 years earlier should have been given the opportunity on state collateral review, after Miller was decided, to challenge his sentence under Miller in state court.  In my column, I suggest that the way in which the Court reaches its conclusion--by deeming Miller a case announcing a substantive rather than a procedural rule--indicates the likelihood that the Court will soon see fit to find LWOP sentences for juveniles unconstitutional across the board, regardless of whether they are mandatory or not.

In my column, I propose that the Court's ruling in Montgomery itself, though perhaps disingenuous, is--from my perspective--a good ruling that heads us in a positive direction.  But why do I think so? Because the "without parole" part of a life sentence had a particular utility when the death penalty was ascendant, and it currently lacks that utility.  Consider what I mean by this.  If your client has just been found guilty of murder with aggravating circumstances and faces the possibility of a death sentence, you want the jury to know that if it sentences your client to "life imprisonment," your client will never leave prison; that is, he will not have the opportunity for parole.  Indeed, your client has the right to have the jury be made aware of this fact (if it is in fact true).  The reason for this right (and for your desire to notify the jury of the lack of parole) is that if the jury knows that parole is not a possibility, then it will not be tempted simply to impose the death penalty as a way to ensure that your client is never released from prison.  LWOP, in other words, serves the purpose of decreasing the felt need for a death sentence.  If we as jurors know that a dangerous and violent person will never leave prison, we are less likely to experience a fear of reoffending that we might experience if we believed that "life imprisonment" actually meant "20 years with good behavior."

As Justice Scalia pointed out in his dissent in Montgomery, one of the reasons that the Court gave in Roper v. Simmons for eliminating the death penalty for juvenile offenders is that LWOP provides an adequate substitute for death.  LWOP, then, serves as a backup plan when execution is a possibility but the goals to be achieved by execution can be equally attained with LWOP.  Faced with the two options of death and LWOP, jurors (and in Roper, the Court) may be favorably inclined toward LWOP.

Now, however, the death penalty for juveniles is unconstitutional.  Furthermore, the death penalty for non-homicide individual offenses is unconstitutional, under Kennedy v. Louisiana.  And, as the Court held in Graham v. Florida, LWOP--the most serious of punishments available for juveniles--may not be imposed on a juvenile guilty of a non-homicide offense.  In Miller, the Court stopped short of ruling out LWOP for all juveniles, however; it simply held that mandatory LWOP is impermissible for juveniles.  But then Montgomery came along and treated Miller as a substantive constitutional case, rather than a procedural one, thus re-characterizing Miller as essentially ruling out LWOP for virtually all juveniles.

So the question is whether it remains important to retain LWOP for that small number of juveniles who might be incorrigible and thus need to be locked up for the rest of their lives to adequately protect society.  And my answer to this question, following on the heels of what appears to be Justice Kennedy's likely answer (based on his opinion in Montgomery), is no.  So long as a juvenile offender may be sentenced to life imprisonment, the default can still be that he or she will remain in prison for the rest of his or her life.  But if it turns out that he or she does in fact change over time and become a better person, a kinder person, a person who no longer poses a danger of hurting others if he or she is released at, say, the age of 69, then the absence of LWOP will mean that a parole board could decide to release him or her at that time.

If what we know about aging criminals is true of most individual offenders--that dangerousness evaporates over time, with the drop in hormones and other changes that accompany aging--there will usually be good reasons to release the juvenile offender before it is time to bury him or her. Some crimes may be so terrible that no one wants to contemplate releasing the offender ever.  But the possibility of parole does not mean that anyone will ever have to release him or her.  It means only that when time has passed and behavior has changed, there will be an opportunity to revisit the judgment that the offender truly belongs behind bars for the rest of his or her life.  And absent the need to provide the sentencer with an attractive substitute for the death penalty, it seems unnecessary to tie our hands with that phrase "without the possibility of parole" anymore, for juveniles and, perhaps some day, for adults as well.

Tuesday, June 21, 2016

Clinton-Bashing As the Last Gasp of the Republican Party

by Neil H. Buchanan

What is it about Hillary Clinton that bothers Republicans so much?  Even more than her husband or President Obama -- indeed, more than any politician within anyone's memory -- Clinton evokes a seething, blind hatred from those on the opposite side of the aisle.

This is especially difficult to understand in light of Clinton's notably successful efforts at bipartisanship while she was in the Senate, as well as her history of center-right policy views that positioned her very much on the right end of Bill Clinton's triangulating administration.  That she has more recently adopted some center-left views is, I am sure, an unpleasant development from the standpoint of Republicans, but their hatred of Hillary Clinton long predates any of that.

Last week, I wrote about Clinton's "high negatives" in polls with voters and how those poll results are erroneously likened to people's much more negative views of Donald Trump.  It has become an established trope of in-the-know political commentary that the two presumptive nominees are both widely reviled.  As I pointed out, however, people can use words like "dislike," "untrustworthy," and similar negative terms in quite different ways: "People can say that they 'hate' getting food poisoning at a restaurant, and they can also say that they 'hate' when the chef uses too much cumin in the curried potatoes."  Both statements are honest, but they are also not at all comparable.

Still, many Republicans will tell you that Hillary Clinton is like food poisoning, not merely an unpalatably spiced dish.  To a large degree, this is the result of Republicans having spent years sitting around campfires telling stories to each other about the Clintons, seeing who can spin the most scary yarn.  She has come to embody the Blair Witch, a succubus, and every frightening villain that Republicans can conjure.

I understand, therefore, that Clinton hatred is somehow both precognitive and post-cognitive; but because I am always most interested in issues, I am fascinated by the mismatch between Clinton's actual not-at-all-extreme policy views and Republicans' visceral revulsion toward her.

One of the ways that Republican elected officials have tried to deflect attention away from the outrages of Donald Trump is by painting Clinton as an unthinkable alternative.  For example, an unknown Republican back-bencher in the House recently said of Trump's series of outrageous statements: "Am I offended sometimes at the comments? Yes I am.  However, what offends me more are Hillary Clinton’s actions."

In a way, trying to analyze that statement is pointless.  After all, many members of Congress have dreams of leadership positions, cabinet posts, and so on.  (Is there anything that indicts political careerism more completely than the idea that some politicians with no interest in, say, labor issues would surely crawl through broken glass to become Trump's Secretary of Labor?)  But watching political animals in their natural environment can be very revealing, and it is notable that this particular congressman thinks that it is somehow meaningful to distinguish Trump's mere words from Clinton's supposed actions.

Unless this guy actually thinks that Clinton killed Vince Foster, what "actions" could he possibly be talking about?  Trump has been telling us in no uncertain terms what actions he will take if he becomes President, and Clinton has been doing the same.  Clinton's policy views are different from most (but not all) Republicans', but Trump is raising serious doubts about whether electing him would be the turning point toward a post-constitutional autocracy in the United States.

It is one thing for the increasingly ridiculous Paul Ryan to say that "the last thing we want is a Democrat in the White House like Hillary Clinton."  (Seriously?  The "last thing"?  She is really worse than a person whom even Ryan describes as obviously racist?  Electing her would be worse than a political coup?  Worse than a presidency that would destroy Ryan's political party?)  Ryan is in over his head on both policy and politics, a career politician trying to figure out how to pretend to be a serious adult, and he cannot stop himself from reverting to over-the-top partisanship.

Today, the New York Times Magazine published a fascinating long-form article by Mark Leibovich, in which he discusses the various forms of denial currently at work in the Republican Party.  Discussing the sad post-primary life of Marco Rubio, Liebovich writes: "Rubio also holds the astonishing position of saying he’ll vote for someone he has previously declared unfit to hold the American nuclear codes. You envision him under a mushroom cloud, assuring his kids that it could be even worse — at least he didn’t vote for Clinton."

This level of anti-Clinton derangement has certainly trickled down to the party's grassroots.  Leibovich describes the never-Trump senator from Nebraska, Ben Sasse, who told Leibovich that people in his state "say: 'I’m distraught. I’m opposed to everything Hillary Clinton stands for, and yet I think I have to vote for her. How do you make sense of this? What should I do?'  These are young evangelical women, teary sometimes. They say, 'I can never tell my kids I voted for that man.'"

Even allowing for rhetorical excess, can it really be true that a young woman in Nebraska is opposed to everything that Clinton stands for?  Other than abortion, which is obviously a high-salience issue for many such voters, what has Clinton ever said or done that would make it possible to say that she is on the bad side of every (or nearly every) issue?

Thankfully, some Republicans are willing to admit that this has gotten out of hand.  Leibovich offered two insightful comments from Republican insiders.  Ed Rogers, a Reagan/Bush I alum who now is a Republican lobbyist, said: "The Clintons have never been the demons ideologically that we’ve made them out to be.  From a character standpoint, they’re pretty bad, but Hillary isn’t the frightening offensive character that Trump is."

Whether one thinks that her character is "pretty bad" depends on how willing one is to ignore the fact that all of the investigations of the Clintons have turned up nothing but a lot of innuendos and unsubstantiated suspicions.  Hillary Clinton has a tendency to become insular when attacked, but I cannot imagine anyone enduring the lifelong character assassination that Clinton has faced without becoming highly defensive.

Perhaps the "character" point was best summed up by John McCain's chief of staff Mark Salter, who told Leibovich that Trump is "just unfit for office," whereas, "I mean, the worst thing you can say about her is, she’s kind of a hack."

And that is exactly right.  About the worst thing that you can say about Hillary Clinton is that she has sometimes been kind of a hack.  The negative things that I have written about Clinton over the years, in fact, have been based on the idea that she sometimes tends toward hackishness, such that one could reasonably suspect that she will allow short-term political calculations to color her views of, say, a financial regulation bill or a question of military strategy.  That is hardly comforting, but how does that make her different from Mitch McConnell, or Ryan, or McCain, or holier-than-Trump Mitt Romney?  How does it make her the second coming of the Wicked Witch of the East?

By contrast, the best things that you can say about Clinton are that she is extremely well informed on issues, that she has actually done a lot of good things both inside and outside of public office in working for change (especially in fighting for the rights of women and girls in the U.S. and around the world), that she is incredibly tough, and that she actually takes into account new evidence and logic to adjust her views.  There are good reasons for a 1990's center-right Democrat to have seen the light and moved to the center-left, after all, and she has been willing to learn and change.

If all the Republicans can do now is continue to hope that saying "Hillary Clinton!!" enough times will scare people, then that tells us more about their lack of anything useful to say than it does about Clinton or the Democrats.

Monday, June 20, 2016

What Bernie Should Seek and What Hillary Should Give, Part 2: Primaries Process

By Michael Dorf

In Friday's post, I asked what the prospects are for Bernie Sanders using such leverage as he has to move Hillary Clinton closer to the policy positions he favors. I concluded that on most issues, Clinton finds herself in the unusual position of being able to move to the left without harming her standing with general election voters.

In addition to seeking policy concessions, the Sanders campaign has also indicated that it would like to see reforms in the way that convention delegates are selected in future nominating contests. To be sure, Sanders has been inconsistent these issues. Early in the season, his campaign complained about the role played by super-delegates because there was a chance that Sanders would win more pledged delegates but end up losing the nomination due to super-delegate support for Clinton. More recently, Sanders suggested that despite trailing Clinton in pledged delegates, he should get the nomination because super-delegates should switch their support to him as the more electable candidate (according to polls asking about hypothetical matchups). Thus, the Sanders position has not exactly been principled. Despite some appearances to the contrary, Sanders is, after all, a politician.

So what procedural reforms, if any, should Sanders seek? In a blog post three months ago, I explored how measures that make a party's method of selecting its candidate more small-d democratic for party members will typically work against the nomination of an electable candidate. The short version is that the preferred candidate of the median voter in the party will be pretty far from the median general election voter. A variety of mechanisms are used by the parties to prevent this outcome. The two main ones are super-delegates and either open primaries or primaries that allow same-day party registration. Super-delegates care and know more about electability than do primary voters, the theory goes. Meanwhile open or quasi-open primaries attract independents, whose participation will tend towards centrism.

Uncharacteristically, the just-concluded Democratic primary season was unusual. (The Republican primary season was obviously unusual as well, but my focus here is on the Democrats.) The more-left candidate, Sanders, actually appealed more strongly to independents. Partly this is just a matter of race. In many ways, Sanders was a conventional "alternative" Democrat, who appealed to young, educated, white voters--somewhat more successful but in the same mold as Paul Tsongas, Bill Bradley, and Howard Dean before him. Meanwhile, Clinton did best in states with larger proportions of minority voters, especially African American voters. The early Sanders spin on this phenomenon--that Clinton was winning the South because Southern voters are more conservative--was at best highly contestable.

Okay, but what does it all mean? That depends on what the Sanders goal of reform is. If he values intra-party democracy for its own sake, then he should seek the abolition or substantial reduction in the role of super-delegates. He should also seek the replacement of caucuses with primaries, even though, other things being equal, Sanders did better in caucuses than primaries. The barriers to participating in caucuses are substantially higher than to participating in primaries.

Open or quasi-open primaries are a harder call. Whether one should favor them on principles of intra-party democracy depends on what one means by intra-party democracy. Allowing independents or Republicans to participate in a Democratic primary can undermine the ability of "real" Democrats to choose their nominee, even without shenanigans (like Republicans deliberately voting for the weakest  general-election candidate in the Democratic field). But for whatever reason the Sanders campaign has generally promoted open primaries.

If the small-d democratic reforms I'm imagining had been in effect in the recent primary season, they probably would not have affected the outcome. Clinton wins even without super-delegates, albeit by a smaller margin. More open or quasi-open primaries would have helped Sanders, but more primaries and no caucuses would have helped Clinton.

What about going forward? If we assume that over the long run party leaders will continue to be out of touch with the American people, then eliminating or reducing the role of super-delegates is a no-brainer. I'm not persuaded that party leaders (who are themselves mostly elected officials in one way or another) will be out of touch going forward, but I think that a very popular case can be made for a package of "pro-democracy" reforms that consists of: 1) eliminating super-delegates; 2) replacing caucuses with primaries; and 3) making primaries open or quasi-open with same-day party registration. These intra-party reforms should be packaged with promotion of a policy agenda of making voting in general elections easier and campaign finance reform that together would make a powerful case for the proposition/slogan that The Democratic Party is the pro-democracy party.

Note, however, that two of these three reforms would probably tend to make the Democratic nominee less progressive, assuming that in future elections we would otherwise see the resumption of the normal pattern, whereby caucus-goers are on average more progressive than primary voters and open-primary voters are less progressive than closed-primary voters. Eliminating super-delegates would tend to make the nominee more progressive, however. Whether that effect is large enough to counteract the other effects is anybody's guess. Because super-delegates are about 15% of total delegates to the Democratic convention, under the existing rules in theory it would only take 35% of the pledged delegates plus super-delegates to block a very progressive candidate judged by party leaders to be too progressive to win the general. Thus, eliminating super-delegates probably does at least balance out the impact of the other reforms in terms of how centrist or progressive the nominee is--in most nominating contests.

If we therefore assume that the ideological impact of the package of reforms described above is likely to be small in any event, then there is really no reason not to get behind it. True, Clinton would not want to eliminate super-delegates because she would expect them to support her. But the truth is that it shouldn't matter to her anymore. If she loses the general to Trump, she's finished as a politician. If she wins, then she should win the 2020 nomination handily even without super-delegates. If she would need super-delegates to defeat a primary challenger in 2020, that would mean that she was always going to lose the 2020 general anyway. (Ted Kennedy's 1980 challenge to Jimmy Carter is the key precedent here.)

So bottom line: In a rational world, the Sanders people and the Clinton people would unite behind the package of procedural reforms I've described above, just as they should find considerable common ground on policy, as described in Friday's post. Put differently, the remaining obstacles to a harmonious Democratic Convention and general-election campaign are mostly personal, not policy-based.

Friday, June 17, 2016

What Bernie Should Seek and What Hillary Should Give, Part 1: Policy

by Michael Dorf

Although Bernie Sanders has not officially endorsed Hillary Clinton, his recent statements clearly indicate that he understands that she will be the Democratic nominee. Nonetheless, coming into the convention with a large number of delegates, Sanders wants to use his leverage to influence the general election campaign, how Clinton governs if elected, and the rules for future presidential elections. In this post, I'll explore questions of policy. In Part 2 on Monday, I'll tackle the process questions for future presidential nominations.

In some sense, what we are now facing is a very standard scenario. A candidate who is farther to the left than the nominee (or to the right when we're talking about the GOP) hopes to use whatever leverage he has to pull the nominee closer to his position; the nominee wants to give enough to the runner-up to appeal to the runner-up's primary supporters, without moving so far from the center as to undermine her ability to "pivot" to attract centrist voters. Sanders, a self-described democratic socialist, is to the left of Clinton on a variety of domestic and foreign policy issues, and so this dynamic looks familiar, at least superficially. And yet, closer scrutiny reveals that the Sanders-Clinton configuration is highly unusual, in a way that ought to make it relatively easy for them to come together on most policy questions.

For most of the primary season, polls showed that Sanders would do better than Clinton against any possible Republican nominee. It was not clear whether these polls were truly predictive, however. Whereas Clinton was a very well-known entity whose high negatives were driven partly by two and a half decades of Republican attacks, Sanders was relatively unknown. It was easy to imagine that if Sanders got the nomination he would be mercilessly red-baited by the GOP nominee, surrogates, and super PACs.

Maybe it would have worked; maybe it wouldn't have. But the key point is that what might have driven Sanders down would have been his past positions and the label "socialist," not the policies that he has been espousing during the campaign: skepticism of various free-trade agreements; much greater government financial support for higher education; single-payer health insurance; a higher minimum-wage; and greater reluctance to use force in foreign affairs. Although I have been skeptical of facile comparisons of Sanders to Trump, there is substantial overlap there, and the seemingly amazing fact is that these pretty clearly left-of-center policies are quite popular, not just among the core Democratic constituencies but even among many people who identify as Republicans.

Thus, by moving to the left on most of the issues Sanders cares about, Clinton could actually increase her appeal to Sanders supporters and to independents and some Republicans. What we have discovered in this primary season is that on areas of seeming bipartisan consensus--such as free trade and relative hawkishness on foreign policy--leading elected officials for both parties are to the right of the electorate as a whole. Accordingly, Clinton should be able to move closer to positions Sanders has espoused without fear of losing support from general-election voters.

And indeed, to some extent that has already happened. Sanders supporters might worry that Clinton only moved to the left to win the primaries in a classic example of a Democratic candidate running to the left in the primaries, then pivoting to the center or right for the general, and in a normal election year, that would be a fair worry. But if Clinton's team is savvy, they will realize that there is no downside to sticking with positions she may have taken simply to appeal to the Democratic primary electorate.

With respect to trade, one worry is that by moving closer to the Sanders position Clinton could lose the support of Republicans who are alienated by Trump's much more extreme anti-trade proposals. But this seems like a small effect. Decent Republicans who can't vote for Trump because he is a racist authoritarian are not going to turn around and vote for him because Clinton's trade policy inches a little closer to Trump's.

The bigger worry for the Sanders crowd should be that while Clinton might campaign in the general as a free-trade skeptic, once in office she'll be pro-free-trade agreements. This is indeed a real worry. Clinton's current views on trade could well be opportunistic. Like Obama and Bill Clinton, she probably does favor free-trade agreements, even when they lead to harm to various domestic industries, because she believes that they benefit the U.S. economy on net.

Yet, as Professor Buchanan has explained, much of our public debate about trade rests on the completely false notion that there is such a thing as "free trade." When one properly understands the differences between Sanders and Clinton as matters of emphasis and degree, it becomes clear that it would be hard to predict exactly which trade policies each would favor and oppose. To the extent that, other things being equal, Clinton's policy preferences would more often incline her to support a free trade agreement than would Sanders's policy preferences, that's a reason for Sanders to use his leverage for trade policy.

On most of the other issues that Sanders holds dear, he probably doesn't need to do very much asking. That's because on such matters as raising the minimum wage and expanding Medicare, Clinton already agrees (or will agree after thinking things through) that the Sanders proposals are good policies and good politics.

The one significant exception is foreign policy. Clinton really is much more of an interventionist than Sanders. In the general, she will emphasize her experience and the fact that Trump could easily start a shooting war because of a personal insult. But once in office, there could arise circumstances in which Clinton would be quicker to use force than Sanders would.

I don't see a good way for Sanders to use his leverage for a more dovish foreign policy. Perhaps his surrogates could get some language inserted in the party platform about the importance of moving U.S. foreign policy on the Middle East to be more critical of Israeli policy, which would be a symbolic victory for some Sanders supporters, but with the exception of briefly misstating the Palestinian death toll in the last Israel-Gaza war, the actual positions taken by Sanders on the Israel/Palestine conflict are not very different from those promoted by both Bushes, Obama, and both Clintons. Compromise language could likely be found for the platform, but this would not have any impact on the conduct of U.S. foreign policy more broadly.

Thursday, June 16, 2016

What Is McConnell's Play?

by Neil H. Buchanan

[Note to readers: I have published a new column today on Verdict: "What Do “High Negatives” Mean? Or: Hillary Clinton On Her Worst Day Is Better Than Donald Trump On His Best."  I have nothing to add here to what I wrote in that column, but I obviously do hope that many people will choose to read it.]

The total collapse of the Republican leadership's opposition to Donald Trump was, to say the least, unexpected.  After mocking him every step of the way during the primaries -- and despising Trump so much that they even reluctantly rallied around the much-hated Ted Cruz for a few weeks -- the party's leaders inside and outside of Congress ultimately fell in line very quietly.  There have been a few holdouts, such as Lindsey Graham and Mitt Romney, but no one predicted the degree of unity that Republican leaders have shown in supporting Trump.

At some point soon, I will write about the peculiar tragicomedy that has become House Speaker Paul Ryan's career.  For now, I will merely emphasize a point that I made in a Verdict Column two days ago.  Ryan has been reported as saying that Trump's attacks on Judge Gonzalo P. Curiel are the textbook definition of racism, yet Hillary Clinton is not "the answer."  I noted: "Republicans like Ryan do not view Hillary Clinton as a preferable alternative even to an unashamed racist becoming president. Amazing."

Ryan's Senate counterpart, Majority Leader Mitch McConnell, is in many ways a more interesting story when it comes to Trump.  While Ryan has spent his career grandstanding about his supposedly high principles and (non-existent) policy chops, McConnell has never been anything but a bare-knuckled politician who represents the interests of the wealthy and powerful.  People who had bought into Ryan's false moralistic posturing were surprised that Ryan ended up endorsing Trump.  For McConnell, however, there were no principles -- insincere or otherwise -- to compromise.

McConnell's career has followed the standard 20th-Century path of climbing the Senate ladder by accumulating seniority and political IOU's.  He is a standard-issue political hack, willing to say anything at any moment if it serves his purposes.  And I mean anything.  He once said that low voter turnout by poorer citizens is an indication that they have no complaints about their government.  He relentlessly pushes the specious idea of Obama's "war on coal."  And on and on.

The Senate's refusal to hold hearings on the Merrick Garland nomination to the Supreme Court is McConnell par excellence: Take a completely defenseless position and repeat it unflinchingly while twisting weaker colleagues' arms to stay in line.  It does take a particular talent to spend hours in front of TV cameras refusing to give an inch to interviewers, especially when one's only talking point is, "The voters should decide."

Again, however, McConnell seems to follow no grand philosophy of governing or economics.  If something is good for the people who back him, and if it will win elections for Republicans, McConnell likes it.  He apparently initially thought that the Tea Party movement would harm Republicans, and he fought strongly against Rand Paul's candidacy for the other Kentucky seat in the U.S. Senate, before deciding that he needed Tea Party votes for his own reelection.  He wanted to move from Minority Leader to Majority Leader, and that career goal mattered more than anything else.

All of which makes McConnell's role in the Trump drama especially interesting.  Even if the politics were somehow to work out that Trump could win while the Republicans lost the Senate, it is impossible to imagine McConnell thinking that such an outcome was acceptable.  The Majority Leader's role is what McConnell has coveted for his entire career, and he would surely prefer to lead a Republican Senate's fight against President Hillary Clinton rather than serve as minority leader under an orange president.

In the real world, where the real question is whether Trump's loss will also result in a Democratic majority in the Senate, McConnell faced an interesting choice.  He and his colleagues could simply give up on winning the White House this year, knowing that four or eight years of another Clinton presidency would make them grind their teeth, but also knowing that they can try to limit the damage while allowing the party to rebuild itself to prevent future Trump-like candidacies.  Given McConnell's long-term commitment to Republicans' winning elections, he might have been exactly the person to take the broader view that a loss now could be a win later.

Therefore, McConnell and his leadership team could have said, "We do not endorse Donald Trump, who is an interloper to our party and a danger to the country.  We urge voters, however, to understand that a Republican majority in the Senate will provide an important brake on Hillary Clinton's presidency."

Although such a statement was imaginable only a few weeks ago, McConnell et al. apparently concluded that they risked a backlash from their base voters who abandoned them in droves during the presidential primary.  McConnell, therefore, was forced to adopt a somewhat more indirect form of that strategy.  McConnell has apparently let it be known that it is acceptable for imperiled Republican senators and candidates to distance themselves from Trump.  So far, however, McConnell has been willing to stick with his endorsement of Trump.

Importantly, however, McConnell has been dancing around Trump while the presumptive nominee has gone from one controversy to the next.  Last week, prior to the Orlando shootings, the Trump outrage du jour was the attack on Judge Curiel.  While Ryan was playing the drama queen, McConnell let it be known that he "would not rule out the possibility of rescinding his endorsement of Donald J. Trump’s presidential bid down the road."

In one way, that might look like a rare flash of statesmanship from the ultimate partisan insider.  McConnell was blunt about Trump's lack of knowledge about the issues, for example.  Yet McConnell merely said that "checks and balances" in the system would rein in Trump, which provides a window into McConnell's inflated sense of his own importance and power.

After all, one of the most serious concerns about a Trump presidency is that no one really knows what would happen if Trump simply decided to stop playing by the rules.  What happens if McConnell leads a group of congressional leaders to the White House to tell Trump that he cannot do something, but Trump simply refuses to meet with them.  (Or maybe he would have them arrested?)

I find Eric Posner's views on executive power chilling, and it was especially scary when he wrote recently about the many ways in which a President Trump could simply do as he pleases.  And Posner nevertheless continued to rely on the claim that "no court would allow him to" withdraw climate regulations, whereas the real question is how the courts would actually stop him.  Posner notes that career civil servants could refuse to go along, but he then admits that Trump could probably work around that roadblock, too.

McConnell could, therefore, be utterly naive in thinking that he would continue to matter in a world where he is the leader of the Senate but the White House is occupied by a man who attacks everyone and everything who stands in his way.  I certainly never thought that I would describe McConnell as naive about politics, however, so it would be helpful to think of an alternative explanation for McConnell's refusal to stand up to Trump now.

As I noted above, McConnell is not one of those people who thinks only in the short term.  Although he is a street fighter who will do everything possible to help Republicans win every election, he has the ability to see that some races will be lost and that the party can prosper after defeat.

So what is McConnell's view of how to control Trump?  Referring to Trump's choice of running mate, McConnell said: "He needs someone highly experienced and very knowledgeable because it’s pretty obvious he doesn’t know a lot about the issues."

In other words, the Republican establishment's answer to Trump is ...  Dick Cheney 2.0!  But why would anyone think that Donald Trump would be as disengaged as George W. Bush was during his presidency, allowing a consummate party insider to run the show?  Even when establishment figures have tried to ally themselves with Trump, Trump takes them for granted and ignores what they say.  He even continues to mock them, as he did recently by indirectly referring to Chris Christie's self-aggrandizing 2012 convention speech.

Admittedly, McConnell has no good options.  But given his mastery of the dark arts of insider politics, it is all too easy to imagine McConnell thinking that if Trump could be not be controlled, he could be jettisoned.  After all, if there is a favored party insider in the Vice President's residence, and President Trump starts to commit impeachable offenses, how is that not a win for McConnell?

To be clear, I am not saying that McConnell is consciously dreaming up such a strategy.  Maybe he is enough of a patriot that he would not try to bring about a constitutional catastrophe that would surely damage society, the economy, and everything else.  But if one's goal is to put the Republican establishment in power, and Trump is standing in the way, extreme measures do exist.

Luckily, all of the evidence indicates that Trump will continue to melt down, and we will never have to test any of these theories.