President Obama with D.C. Circuit nominees (L-R) Robert Leon Wilkins, Nina Pillard and Patricia Millett in June 2013. Picture by Olivier Douliery, McClatchy-Tribune News Service.
Nearly three weeks after Democrats triggered the “nuclear option” and altered filibuster rules to make it easier for sitting presidents to appoint federal judicial nominees, the Senate is set to vote on Patricia Ann Millett’s nomination to the United States Court of Appeals for the District of Columbia Circuit at 10 a.m. on Tuesday morning.
President Obama originally nominated Millett, who has argued 32 cases before the Supreme Court and currently co-heads the Supreme Court and national appellate practices at the Washington, D.C. law firm Akin Gump Strauss Hauer & Feld LLP, to a seat on the D.C. Circuit in June 2013. Senate Republicans deemed Millett too partisan and filibustered her nomination in October, which blocked her from receiving a confirmation vote before the full Senate.
Under the previous rule, Senate Democrats would have needed a sixty-person supermajority to overcome the minority party’s filibuster and force a confirmation vote—a number that they fell short of, with Republicans holding forty-five out of 100 seats. After the Republicans used the same tactic this fall to block two more D.C. Circuit nominees, however—Georgetown law professor Cornelia “Nina” Pillard and United States District Court Judge Robert Leon Wilkins—Democrats changed the rule outright so that only a simple majority would be required to obtain a confirmation vote. With the math on the Democrats’ side now, Millett is expected to be confirmed today. No date has been set yet for voting on Pillard and Wilkins.
The D.C. Circuit is widely referred to as the second most important court in the country after the Supreme Court, as it hears a disproportionate number of high-profile, high-impact regulatory and administrative cases compared to the other twelve federal circuit courts. In a paper published by the Cornell Journal of Law and Public Policy last week, four former D.C. Circuit law clerks examined the jurisdiction of the court and further noted that Congress often “carve[s] out certain areas of federal law as the special preserve of the D.C. Circuit,” which, when combined with the Supreme Court’s tendency to review only a small number of cases each term, effectively gives the D.C. Circuit “the final say—and the only appellate say—over numerous laws and rules affecting the entire nation.” The article’s authors found 150 statutory provisions in the United States Code that referred specifically to the D.C. Circuit, as opposed to eighty-eight mentions for the rest of the circuit courts combined.
In addition, the Circuit has become a stepping stone of sorts for judges aspiring to the highest bench of all: four out of the nine sitting Supreme Court justices have previously served on the D.C. Circuit. ((They are Chief Justice John G. Roberts, Jr. (2003-2005) and Justices Ruth Bader Ginsburg (1980-1993), Antonin Scalia (1982-1986) and Clarence Thomas (1990-1991).))
Of the eleven seats on the D.C. Circuit, four are currently filled by Republican-appointed judges and four by Democratic appointees, while three seats remain vacant. Because of this numerical tie, any changes that President Obama makes to its membership is seen as tipping the court’s balance toward his side of the political spectrum. Senate Republicans have tried to pre-empt this by proposing legislation earlier this year that would have eliminated the three vacancies on the circuit entirely, arguing that the court does not need eleven judges because it faces a lower caseload than it has in past years (and accusing Obama of “packing” the court by filling the empty seats). Given last month’s changes to the filibuster rule, however, this bill is likely to become moot as Democrats now push forward with confirming the President’s nominees.
The vote on Patricia Millett was originally scheduled for Monday evening but was postponed after bad weather in D.C. delayed the travel plans of some Senators.
Let’s assume you’re a normal person. And let’s propose a scenario in which, after years of gridlock between Republicans and Democrats in Washington, the GOP finally seems to be willing to give a little — now that they’ve definitively lost the last two presidential elections and polling appears to be mostly on the side of Democratic policies.
In such a situation, you’d probably welcome the prospect of a Republican thaw and assume it may help produce actual bipartisan legislation for once, no?
But the politics of one core dispute between Democrats and Republicans — what to do about Medicare — are changing. And some of those changes complicate President Obama’s agenda, even as he continues to flex his postelection muscle.
One shift is the shrinking magnitude of the Medicare spending problem — a consequence, at least for now, of a recent slowdown in the rise of health care costs. That diminishes the willingness of Congressional Democrats, and perhaps the administration, too, to accept the sort of Medicare curbs that Mr. Obama has indicated that he favors.
Another is a moderation in the public stance of Republican leaders. In recent weeks, they have advocated smaller changes to Medicare than the “premium support” or voucher plan that Mitt Romney advocated and that Mr. Obama denounced in last year’s presidential campaign.
As a result, Mr. Obama’s ability to deliver a bipartisan compromise on entitlement spending may be waning even as Republicans edge closer to one.
That’s right: Republican moderation is partly why President Obama may be unable to “deliver a bipartisan compromise.” If that sounds ridiculously counterintuitive, it’s because it is.
Yes, I realize the point of the article: that Obama and the Democrats now feel they have the upper hand, which might make them likelier to press their advantage while they have it — thus derailing the hope of a deal. (Never mind the fact that there is virtually no historical/empirical basis to support the notion that the Democrats have taken, or will ever take, advantage of whatever leverage they have.)
But this contorted logic only makes any sense in the context of the conventional wisdom that major media players like the New York Times help create. Mainstream journalists love to mock bloggy sites like Politico for their seeming giddiness in reporting on Washington insider politics, and yet this article — appearing in the Paper of Record, no less — is Beltway cynicism at its worst.
Maybe if the Times focused less on creating counter-incentives that don’t yet exist and exerted more effort instead on sensible reporting of actual political developments, we wouldn’t have so many of these manufactured crises in the first place.
Any resolution of the negotiations is likely to have more of a Democratic stamp, with the party’s victories this year extending beyond Obama’s re-election.
Democrats expanded their majority in the Senate by two members in a year in which 23 of the 33 Senate seats up for election were held by the party, meaning it was vulnerable to significant losses.
While Republicans maintained a majority in the House, Democrats picked up seats. And as of yesterday, Associated Press tallies showed Democratic House candidates got about 900,000 more votes nationally than Republican contenders. Republicans are able to keep control of the chamber because the geography of House district boundaries favors the party.
I’d read earlier that the popular vote differential had been somewhere around 500,000 votes, but apparently now it’s almost one million. It’s pretty incredible that our weird gerrymandering-happy electoral system produces a House of Representatives in which there are now approximately 36 more Republicans than Democrats — when voters actually cast almost one million more ballots for Democrats than for the GOP.
Similarly, the note about the Senate — that of the 33 seats, 23 were held by Democrats, and the Dems actually managed to pick up two seats — puts in perspective just how good a night November 6th was for Team Blue.
Last night, at 11:18 PM Eastern time, FOX News called Ohio — and thus the presidency — for Barack Obama. The announcement followed closely on the heels of ones by NBC, MSNBC, and CBS, and appeared almost simultaneously with a similar declaration from CNN.
But before Mitt Romney would deliver his brief but gracious concession speech, and before the confetti would rain down in Chicago on a thrilling night for the Democratic Party, a minidrama was taking place on FOX News. Karl Rove, the mastermind of George W. Bush’s campaign strategies and the chief fundraiser of American Crossroads and Crossroads GPS (an organization that spent approximately $300 million this election cycle in an almost entirely unsuccessful series of advertising campaigns), insisted that the network had called Ohio too early.
“I don’t know what the outcome is going to be, but we’ve got to be careful about calling things when we have, like, 991 votes separating the two candidates and a quarter of the vote yet to count,” Rove said. “Even if they have made it on the basis of select precincts, I’d be very cautious about intruding into this process.”
Rove, of course, had a big dog in the fight: the near-total failure of his organizations’ efforts over the course of these past two years (echoing the dismal record of fellow Republican tycoon Sheldon Adelson) threatens his credibility as a savvy strategist and, thus, his ability to raise money in the future.
Even so, Rove’s impassioned opposition to the statistically-based consensus was startling in its self-certainty. It was as if, by the mere act of delaying the final announcement for just minutes or seconds more, Rove thought it possible to stave off — or even alter — reality itself. But at long last, the empirical world would wait no longer, and his fever dream finally met its bitter end.
It is precisely because Rove’s delusions echo the larger fantasies of the Republican Party that his earnest entreaties should rattle the moderate voices within a GOP struggling to make sense of its post-election blues. Indeed, his blunt refusal to accept the rapidly descending reality was not an exception, but the norm. Dick Morris predicted a landslide for Romney. George Will similarly forecasted a 321-217 electoral vote triumph. Michael Barone envisioned a nearly identical result of 315-223.
Meanwhile, the New York Times‘ Nate Silver — who first rose to stardom in 2008, when he correctly predicted the electoral outcomes in 49 of 50 states — had been steadfastly forecasting an Obama victory for months. As his stated probability crept steadily closer to 90% and then beyond, Silver’s detractors on the right multiplied. Examiner.com’s Dean Chambers infamously wrote, “Nate Silver is a man of very small stature, a thin and effeminate man with a soft-sounding voice…” And MSNBC’s Joe Scarborough lambasted Silver as well, proclaiming, “Anybody that thinks that this race is anything but a tossup right now is such an ideologue, they should be kept away from typewriters, computers, laptops and microphones for the next 10 days, because they’re jokes.”
Unlike the analysis conducted by many of his conservative counterparts — to the extent that he has peers at all — Nate Silver’s predictions were grounded firmly in empirical data. He meticulously averaged, weighted, and adjusted polls based on data recency, the historical accuracy of the various polling firms, “house effects,” and so on. While not every aspect of his evaluations was made entirely transparent — every whizkid needs his secret sauce, after all — he explained the bulk of his seemingly alchemical methodology in column after column.
It is useful, then, to transpose the lessons of this Triumph of the Nerds onto the broader political struggle that just culminated in Barack Obama’s reelection last night. Just as Silver’s coolheaded, reason-based analysis prevailed over the flamboyant provocations of right-wing pundits in the months leading up to the election, it was the centrist and well-balanced vision for America that won over the majority of citizens in the voting booths yesterday.
Barack Obama and the Democratic Party are both deeply flawed (and often infuriating) entities, for a variety of reasons that could fill entire volumes of books. But their lack of conviction and courage was dwarfed by the monumental denialism of Mitt Romney and the Republican Party, whose deeply entrenched rage at the president was predicated on an increasingly tenuous grasp of reality.
The list could continue ad nauseum. But it is not simply the misstatement of fiction as fact that characterizes the Mitt Romney-era Republican Party; after all, one could easily compile an impressive list of whoppers told by Obama and his political supporters as well. What Mitt Romney failed to understand was that a platform of extremism — ranging from the “self-deportation” of illegal immigrants to his support of a constitutional ban on gay marriage to his pledge to reject even a 10-to-1 ratio of spending cuts to tax hikes — is not in line with the views of the American public.
On this issue, the fault lines within the Republican Party are already starting to widen. It is likely that a civil war of sorts is looming within the party, with the moderate wing led by Jeb Bush and Chris Christie facing off against the Rick Santorum and Michele Bachmann types for the ideological future of their party.
Today, Fred Barnes of the Weekly Standardhas written, “No doubt the media will insist that Republicans must change, must sprint to the center, must embrace social liberalism, must accept that America is destined to play a less dominant role in the world. All that is hogwash, which is why Republicans are likely to reject it. Their ideology is not a problem.”
It is this brand of thinking that the Republican Party must bury if it wishes to emerge from the throes of an eminently avoidable defeat. As Joel Benenson wrote in today’s New York Times, “The president’s victory was a triumph of vision, not of demographics. He won because he articulated a set of values that define an America that the majority of us wish to live in: A nation that makes the investments we need to strengthen and grow the middle class. A nation with a fair tax system, and affordable and excellent education for all its citizens. A nation that believes that we’re most prosperous when we recognize that we are all in it together.”
Mitt Romney was never able to peer beyond the narrow passions of an inflamed base for long enough to understand that the country, as always, is changing. Gone are the days of sole reliance on older white voters. Similarly, a slow national metamorphosis has eliminated the Republican Party’s once-solid, but now anachronistic and non-existent, competitive advantage on social issues. Even on foreign policy, the baton has largely been ceded to a president once derided as naive and unprepared.
The Republican Party of 2012 must see its decisive defeat as an opportunity. Making inroads with Latinos and African-Americans should be a priority. Abandoning its puritanical image — including some truly appalling perspectives on rape — is just as important, especially as the younger generation comes of age in a country of broad diversity in race, ethnicity, sexual orientation, and many other facets of life. (As Matthew Dowd so eloquently put it, Republicans have become a “‘Mad Men’ party in a ‘Modern Family’ America.”) Reasserting the GOP’s hegemony on economic and fiscal responsibility will take much work after its free-spending Bush years and its ideological rigidity during the Obama era, but it is not impossible.
Already, there are signs of a Republican thaw. House Speaker John Boehner, appearing today at the Capitol, signaled an openness to raising revenues in exchange for reform of entitlements and the tax code. “Mr. President, this is your moment,” he said. “We’re ready to lead, not as Democrats or Republicans, but as Americans.” This is a far cry from Mitch McConnell’s notorious statement in an October 2010 interview: “The single most important thing we want to achieve is for President Obama to be a one-term president.”
Now that the GOP has failed at this singular task, perhaps it can take a further step away from the precipice by cleansing its ranks of the vitriol and stubbornness that so characterized its behavior in President Obama’s first term. Today, Jon Huntsman’s strategist, John Weaver, seemed to grasp the significance of this necessary transformation: “We have a choice: we can become a shrinking regional party of middle-aged and older white men, or we can fight to become a national governing party. And to do the latter we have to fix our Hispanic problem as quickly as possible, we’ve got to accept science and start calling out these false equivalencies when they occur within our party about things that are just not true, and not tolerate the intolerant.”
Such a reformation will require the elimination of the type of epistemic closure suffered by Karl Rove on Election Night. It will require a reorientation away from 1950s-style conservatism and towards a more modern variant that embraces our nation’s diversity and encourages the expansion of marriage to include same-sex couples. And it will require the implementation of a form of self-policing to prevent the party of conservatism from devolving into an aspiring theocracy.
In this sense, Barack Obama’s reelection has done the GOP a favor. It has acted as a natural corrective of a national party gone astray, and it establishes in precise numerical terms the unease with which Americans viewed an increasingly unhinged Republican Party. It serves as a reminder that, while we will tolerate all sorts of folly in the name of entertainment and politics, we draw the line at ideological insanity. For the sake of all American citizens, one can only hope the Republican reincarnation will begin in earnest today.
Funny how the first group of non-pols that Obama sat down with were leading conservative writers, like Bill Kristol and Charles Krauthammer (the liberals came second); that he asked Rick Warren to give the invocation at his Inauguration; that his stimulus was a third tax cuts (the only big tax cuts Republicans have ever voted against in my memory); that his healthcare reform was not single-payer, but one modeled on Mitt Romney’s moderate version in Massachusetts; that he has given Israel more military and technological support than any previous president; that his foreign policy is now praised by his opponent; that he killed bin Laden; and gave a speech urging freedom in the Arab world in his first few months, and that popular democratic revolutions broke out in Iran, Egypt, Tunisia and Libya on his watch. Funny also how one of the first things Obama did was to extend the Bush tax cuts – such an obvious partisan move designed to shut Republican ideas out of his agenda…
More to the point, the set of actions I have outlined above could quite easily have been George W. Bush’s agenda (or David Cameron’s, if he were on the right of his own party). There was plenty of compromise by Obama from the beginning, both symbolically and substantively. But a Republican decision was made that, even in the worst recession since the 1930s (whose impact on unemployment was devastating) not a single Republican House vote would go for the stimulus. It shocked me at the time, coming so soon after such a big election. I was naive enough to think that an emergency action that prevented a second Great Depression was something the opposition party might have supported, after losing an election badly to a newly elected president in the middle of the worst economic crisis since the 1930s. I naively believed that just as a group of Democrats had supported Ronald Reagan’s massive tax cut because they thought he had a mandate for one, a group of House Republicans might put country before party and give the man who ran on bipartisanship a chance.
Instead, they set out from Day One to destroy him, because they knew that if his moderation and modern cultural identity succeeded, their reactionary radicalism would be sidelined for good. And Rove’s method is always to see what your party’s own worst flaw is among the public and, with a straight face, accuse your opponent of it.
You know what we’re fighting in this election? That cumulative, snow-balling, post-modern, cynical faction of deceit and partisan amnesia. If we are to get past the Cold Civil War we are in, the defeat of the rigidly ideological and theiological GOP is vital.
Amen, brother. Obama’s greatest mistake was to harbor any illusions whatsoever that the Republican Party was even remotely interested in governing the country like a responsible group of elected representatives.
Americans split evenly on the Supreme Court’s recent 5 to 4 decision upholding Obama’s health-care law, with 42 percent approving of the decision and 44 percent opposing it. But in a significant change, the legislation is now viewed less negatively than it was before the ruling. In the new survey, 47 percent support the law and 47 percent oppose it. In April, 39 percent backed it and 53 percent opposed it.
House Republicans will vote again this week on a measure to repeal the health-care law. In the poll, just one-third of all Americans favor repealing the legislationin its entirety or in part. At the same time, Thirty-eight percent of Americans consider Romney’s support for repeal a major reason to vote for him, compared with 29 percent who say it is a major reason to vote against him.
I say this time and time and time again, but I feel compelled to say it again now anyway: Americans don’t care about policy; they care about comportment. If you look like you know what you’re doing, as long as it’s not something completely crazy, they’ll support it — no matter who the party in charge is. Hell, most Americans don’t even understand policy. I don’t think one could even find 30% of the population that’s capable of answering two or three basic questions about the health care law.
But look what happens when the Supreme Court rules in its favor: suddenly the law isn’t so bad anymore. Same with gay marriage among African-Americans: everyone was freaking out about what Obama’s declaration of support might do to his black constituency, and within days of his announcement, black support for gay marriage skyrocketed (by around 10% in some places, I believe).
This is why the Democrats are such a pathetic party: they still haven’t learned this lesson. They enacted healthcare in 2010, the Republicans screamed “death panel,” and the Democrats retreated. So of course voters hate the law: Democrats looked like they didn’t know what they were doing, and Republicans looked like they did. It was never about actual policy.
For an example of real leadership, even if the policies themselves weren’t necessarily good, Scott Walker ran for office promising to balance budgets, decided to bust the unions, withstood massive public discontent and a recall election, and held his ground and won. That’s balls. But the ballsiest Democrat is still a bigger coward than the weakest Republican (with the exception of Mitt Romney). When will this sad excuse for a party learn to actually vouch for its own ideas? It’s pathetic.
