Monthly Archives: April 2017

Supreme Court 2016-17: Forthcoming Opinion Watch

By tmess2 | Published April 30, 2017

Like much in government (including the school-year that many of us remember from growing up), the Supreme Court follows a cyclical calendar.  Beginning with the first Monday in October, the Supreme Court has seven argument sessions each year.  Each session is two weeks followed by a recess.  Five of these recesses are for two weeks, but the recesses taken over Christmas and after the January arguments are usually for four weeks.  During these approximately thirty weeks, the Supreme Court is engaged in three basic tasks:  1) reviewing applications from parties that want their cases heard by the Supreme Court; 2) preparing for and holding arguments in those cases that have been accepted; and 3) writing opinions.  Because the task of preparing for arguments (reading the written arguments of counsel and reviewing the record from the trial court to get an idea of the “facts” underlying to which the law has to be applied) is time consuming, opinions tend to slowly dribble out during these first thirty weeks.  As a result, when the arguments end in late April (or early May depending upon the calendar), there are typically a significant number of cases still waiting for opinions.

During this year’s term, as is not unusual, there were a handful of opinions issued in December and January (a total of six) with the number going up slightly during February, March, and April (a total of twenty-one so far with the possibility of several more on Monday before the Supreme Court leaves for its final recess.  However, with arguments for the year having wrapped up this past Wednesday, there are currently thirty-eight cases in which opinions have not yet been issued.  While there are some exceptions to the rule, by this time of year, the Supreme Court has issued opinions in most of the cases heard last Fall.  During the argument portion of the year, it takes between two and six months to get an opinion.  The simple cases in which there is unanimous agreement among the Justices (which represent about half of the cases) tend to come quickly.  When the Justices disagree, the process stretches out as the Justices in the minority draft opinions responding to the majority opinion, and the majority opinion then makes changes to address the issues raised by the minority (and so on until everyone believes that no further changes are needed).    The bottom line is that, at this point of the year, opinions have been issued for all of the October arguments, for about two-thirds of the November and December arguments, for about half of the January and February arguments, and for none of the March and April arguments.  The expectation, especially for the remaining cases from November and December, is that the delay represents some significant disagreement in the early cases.

Before going into the highlights of what is left to come down — either on Monday or more likely between mid-May and the end of June when the Supreme Court returns from its last recess — one point to make.  Justice Gorsuch only participated in the arguments for this last two-week session.  The tradition is that a Justice does not vote in cases heard before the Justice joined the Supreme Court.  However, it is not unusual to schedule a case for re-argument if the a Justice joins the Court after argument and the vote of the eight Justices who heard the case is split 4-4. Continue Reading...

Posted in Civil Rights, Judicial, Uncategorized | Tagged , , , , , , , | Comments Off on Supreme Court 2016-17: Forthcoming Opinion Watch

Foreign Elections — French Edition

By tmess2 | Published April 22, 2017

On Sunday, French voters will go to the polls in the first round of their presidential election.  There are several key differences between the U.S. and France.  First, the French have more than two main political parties.  Out of the eleven candidates running, at least five represent significant political groupings.  Second, the French president is elected by popular vote.  Third, if no candidate gets a majority of the popular vote (likely based on current polls), there will be a run-off.  Fourth, the center of French politics is significantly further to the left than U.S. politics.  While folks try to put things in U.S. terms, the best way to view it is that the top five is like Donald Trump, John Kasich,  Elizabeth Warren, Bernie Sanders, and someone to the left of Bernie Sanders, and even the Donald Trump candidate is more liberal on fiscal issues than President Trump.

Of course, what is the same is the existence of the National Front — an organization that Donald Trump loves.  As it’s name implies, the National Front is a xenophobic party opposed to French membership in the European Union and the Islamic influence in France.  It is also pro-Putin.  The National Front typically polls somewhere in the teens.  While this has historically been enough for the National Front to contend for run-off slots (both in Presidential and Parliamentary elections), the National Front is so far out of the mainstream of French politics that it normally loses most of those run-off elections (it only holds two seats in the outgoing French Parliament.)  In this election, the National Front is (again) running Marine Le Pen — daughter of the founder of the National Front and its leader since dear old dad retired.

There are some signs that the far right nationalist views of the National Front are making gains in France.  There is a symbiotic relationship between ultranationalist candidates like Le Pen and Trump on the one side and Islamic fundamentalist terror groups like ISIS.  Each terror attack make the law and order and anti-Islam messages of the ultranationalist sound like the only option that voters have if they want security.  However, that very anti-Islam message feeds into discrimination against Muslims who are native-born citizens.  Young Muslims feeling rejected by their own country then turn to leaders who call for a return to an era when Islam was dominant and promote violence as a means to that end.  When these young people follow through on that call and engage in acts of terror, the cycle begins again.   Given a spate of terror incidents on the eve of the election, the National Front may pick up an extra couple of percent in the first round of the election. Continue Reading...

Posted in Elections, The Politics of Hate | Tagged , , , , | Comments Off on Foreign Elections — French Edition

Why Vote? Seven Reasons

By DocJess | Published April 18, 2017

Why vote? I get asked this a lot.

Especially in an odd year like 2017.

Where to start? Continue Reading...

Posted in Elections | Comments Off on Why Vote? Seven Reasons

The Democratic Party: Where do we go from here?

By DocJess | Published April 17, 2017

In the past week, I had three conversations that all intersect on the issue of the future of the Democratic Party. Three quite different people, and varying subject matters. I have not yet reached a conclusion, but the questions raised fascinate me.

Conversation 1

I belong to a political action group and we had a meeting. While the topic doesn’t matter, this comment still rings in my ears: “I work in a factory, and we make decisions immediately. I hope the rest of you won’t take this wrong, but you are pencil pushers.” Continue Reading...

Posted in Democratic Party, Money in Politics, Politics | Comments Off on The Democratic Party: Where do we go from here?

Special Elections — Kansas Edition

By tmess2 | Published April 11, 2017

As I write this post, the results are coming in for the special election in the Fourth District of Kansas.  While the election has been close all night, it now appears that, by a very narrow majority, the Republicans will keep this seat.   This seat is the first of four special elections to fill vacancies in seats formally held by Republicans who are now serving in the Trump Administration.  (There is also a special election to fill a Democratic seat formerly held by the new Attorney General of California — who was appointed to that office after the previous A.G. won the U.S. Senate seat last fall.  The primary for that seat was held earlier and two Democrats advanced to the runoff.)

It is hard to tell whether this seat was close because of the unpopularity of Kansas Governor Sam Brownback — a stellar example of why the Freedom Caucus’s plan for government is a roadmap for a complete disaster — or the unpopularity of President Trump.  The Republican candidate is the current State Treasurer and as such is unable to avoid association with Governor Brownback’s reckless scheme to bankrupt Kansas.  And Donald Trump will probably claim that his assistance via a last minute robocall saved this seat.

The bigger question is what this close race means going forward.  In the last two elections, the Republicans won this seat by 30%.  This race looks like a final margin between 4-8%.  That type of swing if replicated across the country would lead to a Democratic majority in the next Congress.  In the shorter term, the question is whether this result can be replicated in next week’s special election in Georgia or the upcoming elections in May and June in South Carolina and Montana.  With the exception of the Georgia seat, even if a Democrat wins the special election, these seats are going to be difficult for a Democrat to hold in 2018.  Having a Democratic incumbent in these seats would, however, require the Republicans to devote a significant level of resources to get them back, making it easier for us to pick up seats elsewhere.  More importantly, if the Democrats can keep these races close and even win some, it is going to increase the jitters of Republicans in lean Republican seats.  During the Obama Administration, it was easy for Republicans to just say no and not have to accept responsibility for the gridlock in D.C.  The Republicans are now fully in charge and are responsible for getting things done.  The problem for Republicans in Congress is that the American people do not want what the Republican Party wants — even the voters in Republican seats do not want what the Republican Party wants.  That puts Republican Representatives on the hot seat.  They can either tell their Republican colleagues to slow down and take a second look at things or they can follow Speaker Ryan and President Trump like lemmings to their downfall in the 2018 election.  My hunch is that, like most politicians, the Republican members of Congress are tuned into their own survival.  The warning signs from the 4th district of Kansas this week and the 6th district of Georgia next week is going to make it very difficult for President Trump and Speaker Ryan to get their plans through Congress.

Posted in Elections, House of Representatives | Tagged , , , | Comments Off on Special Elections — Kansas Edition

The Supreme Court and the Filibuster

By tmess2 | Published April 2, 2017

This week has the potential to be a significant week in Senate history.  Over the past two presidencies, there was a rise in the use of the filibuster to block executive branch and lower court nominees.  During the George W. Bush presidency, there were enough Democratic and Republican senators willing to work out a deal in which the Democratic senators agreed to vote for cloture on most nominations and the Republicans agreed not to invoke the “nuclear option” (exempting such nominations from the three-fifth’s rule for cloture by the vote of a majority of the Senate).  During the Barack Obama presidency, there were not enough Republican senators willing to make such a deal and the Democrats were forced to go with the nuclear option on such executive branch and lower court nominees.  However, the normal cloture rules were left in place for Supreme Court nominees.

As a starting point, here is the tentative schedule for the week.  First, on Monday, the Judiciary Committee is scheduled to vote on the nomination of Neal Gorsuch.  Right now, it appears likely that the committee will approve that nomination by a majority vote.  Assuming that the Committee sends its report on that nomination to the Senate on Monday, that would trigger Rule XXXI which provides that (except by unanimous consent which will not be given) the Senate may not vote on a nomination on the same day that the nomination is reported to the full Senate.   The Republicans will then attempt to call the matter up for a vote by unanimous consent on Tuesday.  At least one Democrat will object, and the Republicans will file a cloture motion.  Under Rule XXII, that motion will probably come up for a vote on Thursday and would take sixty votes to pass.  Based on current whip counts, those sixty votes will not be there.  If somehow, the Republicans get the sixty vote or invoke the nuclear option, Rule XXII would permit thirty more hours of debate resulting in a vote between Friday and Monday the 10th.  (Technically, the Easter state work session is currently scheduled to start on the 10th and go through the 21st.  The last two weeks of argument in this year’s Supreme Court term are the weeks of April 17 and April 24.  So if Judge Gorsuch is confirmed this week, he could sit on the last thirteen arguments of this term.  If the final vote takes place after April 21, Judge Gorsuch will not sit on any argument until the next term beginning in October.)

Assuming that the cloture vote goes as currently anticipated, the Republicans will have three options.  Option number one would be to use the Easter recess to put pressure on vulnerable Democratic senators.  Right now, the two most vulnerable Democratic senators (Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota) seem likely to vote for cloture, but there are other Democratic senators from other states that Trump won by wide margins.    While there are ten Democratic senators on the 2018 ballot from states that Trump won (and Maine’s independent Senator is not necessarily going to join the Democrats on this issue), half of those senators are from swing states.  The only two other Senators who come from states that were not too close to call in 2016 are Senator McCaskill from Missouri and Senator Donnelly from Indiana.  Unless the Democratic senators hear from party activists that party activists do not really care about this issue, the vote is unlikely to change much after the recess.  On the other hand, the Republican leadership would be in a stronger position to invoke the nuclear option after the recess.  (The more moderate members of the Republican caucus might believe that the Democrats should at least be given some time to debate and make their case before the nuclear option is invoked.) Continue Reading...

Posted in Judicial, Senate | Tagged , | Comments Off on The Supreme Court and the Filibuster