Tuesday, February 16, 2016

et ceteras

Scalia, Part I
The nation lost a titan when Antonin Scalia passed away Saturday at the Cibolo Creek Ranch in western Texas. I am rarely at a loss for words, but I am on this occasion.

When I try to think of a starting point to opine about Scalia's influence or commemorate his life, my brain shuts down. All it tells me is that words can not adequately describe the vital role he played in supporting the noble American experiment of personal freedom. (To protect personal freedom, the American experiment calls for government to be restrained by virtue of constitutional limitations and the equitable application of laws.)

Nonetheless, I can not let Scalia's passing go without mention, for among the millions of people whose lifetimes overlap mine, there is nobody other than Thomas Sowell whose intellect and philosophical courage have inspired me as much as his. So I will mention these five things: 1) the U.S. Supreme Court was founded 227 years ago and Scalia was, arguably, the best justice ever to serve on it; 2) he had what Ernest Hemingway referred to as a "built-in bullshit detector," which enabled him to cut through all the hazy legalistic foam and get right to what really mattered in every given case; 3) the opinions he wrote for the Court were unequaled; 4) I loved that when he voted with the majority and another justice was assigned to pen the majority opinion, Scalia still took time to write a separate, concurring opinion, just to make sure that certain vital points didn't get left out of the public record; and 5) taken as a whole, his written opinions laid a philosophical and legal groundwork that will sustain constitutionalism and conservatism (terms that should be interchangeable) for generations to come.

Go here for some of his finest quotes.

Scalia, Part II
I found it unseemly that as soon as news of Scalia's passing broke, many media outlets started pontificating about the politics of replacing him. It had all the tact and class of a dog humping your leg or a cannibal eating raw meat.

But then again, it was Scalia himself who chose to devote his life to high profile public service, so he always knew the topic of who would replace him was bound to come up as soon as he died -- kind of like head coaches in all the major sorts know their employment is almost certain to end with them being very publicly fired -- and therefore it is valid to pontificate about who will take Scalia's seat, and how that person might attain the seat.

For my two cents, I will simply say that the Senate should do precisely what Mitch McConnell said it will do; i.e., it should refuse to even hold a vote for anybody that Barack Obama nominates... Liberals and Democrats will howl "Gridlock!" like stuck pigs, but so what? The Constitution was written specifically to cause gridlock, not prevent it... Lily-livered GOP consultants will fret that taking such a strong stand may alienate the so-called "moderates" whose votes they covet, but so what? Failing to take a strong stand will definitely alienate the base whose votes are truly necessary for victory in November; and it would also alienate the disaffected working Joes who seem ready to deliver an avalanche of not-always-Republican votes to the GOP this November.

Scalia, Part III
Riffing a bit more on my suggestion that the Senate refuse to bring Obama nominees up to a vote, I want to point out that the Constitution does not require the Senate to hold a vote on a nominee simply because the president names a nominee... nor, needless to say, does it require the Senate to vote on a nominee within any particular timeframe... nor does it require there to be a certain number of sitting Supreme Court justices... nor does it require there to be a certain number of justices voting on a case, or even for there to be an odd number of justices voting on a case -- which is obvious once you remember that it's not unusual for justices to be recused due to conflicts of interest, history of advocacy, etc. (in case you're wondering, a 4-4 vote on a case simply means that the lower court's decision stands and that a future case regarding the same issue can still be brought before the Court).

When it comes to Supreme Court justices and their confirmation by the Senate, all the Constitution says is that no nominee can become a justice without the Senate agreeing to the nomination. In other words, the Senate is entirely within its rights to withhold voting on a nominee, or even to withhold voting on a whole class of nominees -- especially when the nominating president is in his final year and has been unambiguously rejected by the public by virtue of its votes in mid-term elections.

If today's Republican and Democrat roles were reversed -- e.g., if the Dems had just won a Senate majority and a final-year Republican president nominated somebody to replace Ruth Bader Ginsburg or Stephen Breyer -- you know damn well that the Senate Dems would absolutely do everything they could to prevent the nomination from being approved, up to and including refusing to hold a vote.

Democrat voters fancy themselves as revolutionaries defying the powerful. And for years, many of them have fancied their party as a revolutionary one defying an omnipotent GOP. This is especially true for voters who are currently feeling the Bern -- who are so enthralled with Bernie Sanders that they haven't noticed he's not even a Democrat!

I find it chuckle-worthy that people with this self-conception are so proud to associate themselves with a party that deliberately disenfranchises them.

I find it chuckle-worthy that people who loudly condemn "the powerful" and "the one percent" don't seem to have any problem aligning themselves with a party that crushes the rank and file in order to serve the powerful and one percent.

The Iowa caucus ended with Sanders and Hillary Clinton in a statistical tie. Only four votes (obviously, far less than a one percent margin) separated them, yet Clinton went home with a 23-21 lead in delegates (greater than a 4.5 percent margin). This amounts to more than a 16 percent disparate impact -- which would not happen under the GOP's rules.

Then, in the New Hampshire primary, Sanders beat Clinton by a massive 60-38 margin, while receiving more votes than any presidential candidate from either party has ever received in the history of that state's primaries -- yet Clinton walked away with more delegates than him, thanks to the party's super delegates casting their lot with Clinton without any regard for how their constituents voted. Again, this would not happen under the GOP's rules.

So Clinton is currently winning the two-person race for the Democrat nomination even though far more Democrats have voted for the person who is not her... and so many super delegates have already pledged to vote for Clinton (before the citizens of 48 states have even had a chance to vote) that even if all the uncommitted super delegates were to vote for Sanders, he would still finish behind her in the super delegate count... and, her super delegate lead might be enough to overturn the votes of the nation's citizens at large, and thus deliver the nomination to somebody who the citizens at large reject... and again, this would not happen under the GOP's rules.

So, can somebody please explain how the Democratic Party gets away with portraying itself as the party "of the people" while portraying the GOP as the party "of the powerful"?

But when it comes to the GOP...
...it too is in a pickle, and that pickle is of the GOP's own making, and it is summed up by the words "Donald" and "Trump."

Trump is demonstrably not a conservative. There is no evidence that he has any philosophical moorings about the size and scope of government... and no evidence that he has any philosophical moorings when it comes to the rights of individual human beings who find themselves up against a powerful, politically connected leviathan... and no evidence that he has even the slightest knowledge of the Constitution, much less the slightest respect for it... yet there is evidence that he has at least some beliefs which are anathema to conservatism (for starters, eminent domain and government-dominated health care).

In a sane political world and regular times, Trump would have no chance of winning the nomination of America's supposedly conservative party... but today's is not a sane political world, and these are not regular times... and the GOP has spent the last 15 or so years doing many things which make it clear that when it comes to its moorings, the adverb "supposedly" is a much more accurate word than the adjective "conservative"... and therefore, Trump has found an opening and is exploiting it.

In poll after poll (and, so far, in every caucus and primary) the majority of Republicans vote against Trump. But because so many other Republican candidates are on the ballot (and so many private sector Republicans have been given valid reasons not to trust public sector Republicans) Trump is reaping the rewards by winning with a plurality if not a majority.

In New Hampshire, 65 percent of the votes were against him and only 35 percent for him; but because the 65 percent was split between eight other candidates, Trump prevailed in what he can fairly call a landslide -- and this delivered him enough delegates that he now has a non-insignifcant lead in the all-important delegate count.

If the GOP had spent the Obama years behaving like the party of Ronald Reagan, rather than the party of Herbert Hoover and Theodore Roosevelt, it would not be in its current position. Likewise, if more of the GOP's non-Trump candidates would do the right thing and drop out of the race (thereby clearing the field so non-Trump voters could coalesce) it would not be in its current position. This is a GOP problem, not a Democrat problem, and it is up to the GOP to fix it.

But at the end of the day, conservative primary voters can take the problem out of the party's hands and fix it themselves. They can do this simply by ignoring everybody not named Ted Cruz or Marco Rubio, and punching their ballots for either Cruz or Rubio rather than Bush, Carson, Kasich, zzzzzz.

If that were to happen over the next few weeks, the race would consolidate. Then, people who live in states that vote after March 1st could choose strictly between Cruz and Rubio; and as their votes would make the picture even clearer, I have no doubt that either Cruz or Rubio would read the tea leaves and do the right thing by bowing out and throwing his support behind the other.

Will that happen? Who knows? But it should.

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