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SCOTUS outlook, 2012-16

It's been a weird couple of weeks in American politics, with Republicans claiming that an insurance rule that applies to religiously affiliated institutions is tantamount to an assault on First Amendment religious liberty (despite a guiding Supreme Court precedent from 1993, written by Associate Justice Antonin Scalia, that argues otherwise), followed by a series of bizarre public statements by nominal GOP front-runner Rick Santorum. Clearly the conservative idea of a culture war has returned to contend for our national attention, and will likely continue to receive bandwidth so long as the economy keeps getting better.

Which brings us to another under-discussed issue in the 2012 Presidential election: U.S. Supreme Court appointments.

In 2012, the Roberts Court is made up of nine justices between the ages of 51 (liberal Elena Kagan) and 78 (liberal Ruth Bader Ginsberg). Four of the nine are appointees of Democratic presidents (Kagan and Sondra Sotomayor, Obama; Ginsberg and Stephen Breyer, Clinton) and five were appointed by Republicans (Chief Justice John Roberts and Samuel Alito, Bush; Clarence Thomas, George H.W. Bush; and Anthony Kennedy and Scalia, Reagan).

Despite the Roberts Court's reputation for partisan division, only about 20 percent of its decisions have come on 5-4 votes. But here's the thing about those votes: Its close decisions have tended to be about the kinds of political and philosophical issues that concern voters, rather than arcane rulings on the finer points of law. It's not that the court is sharply divided on everything -- it's just divided on the really important things. Like the Citizens United ruling, in which all five Republican-appointed justices voted together.

When it comes to those kinds of decisions, the Roberts Court looks depressingly predictable. In 14 of the last 16 5-4 votes, Democratic nominees (Kagan, Sotomayor, Ginsberg and Breyer) have been on one side, and four of the five Republican nominees (Roberts, Alito, Thomas and Scalia) have been on the other, leaving Reagan appointee Kennedy to cast the decisive vote. Not that Kennedy is an equal-opportunity swinger. He decides in favor of the Republican justices more than 60 percent of the time.

Which brings us to the question: How many appointments is the 2012 Presidential winner likely to receive, and more importantly, what effect are they likely to have on the court and the country?

Barring the usual boilerplate about health and personal conscience, it's safe to say that none of the Justices who will be younger than 70 in November 2016 are likely candidates to step down. Only one of the nine justices that the current justices replaced was younger than 70 (the enigmatic David Souter, who resigned in 2009 at age 69). The other predecessors of the current crop of justices were 75, 76, 79 (two of them), 80, 83, 85 and 90 when they either stepped down or died in office. That's an average retirement age of 79.

By this standard, we need only consider four justices as possible candidates for replacement: Breyer, 73; Scalia, 75; Kennedy, 75; and Ginsberg, 78. Three of the four will be 79 or older in 2016.

Of this group, only two-time cancer survivor Ginsberg should be considered likely to be replaced before 2017. Should President Obama win re-election and the right to nominate her replacement, her departure would have little effect on the court's composition -- though her replacement by a conservative justice would almost certainly produce an unbreakable five-member conservative block -- with Kennedy serving only as an unnecessary sixth vote.

However, if we take history as a guide, then there's probably at least a 50 percent chance that the Presidential winner in November will get a second appointment, probably from one of those other three seventy-something justices. And if that justice turns out to be either Scalia or Kennedy and that President is Obama, then we're looking at the first major ideological shift on the court since Clarence Thomas replaced Thurgood Marshall in 1991.

Weirdly enough, every justice on the Roberts Court except Thomas replaced an outgoing justice with whom he or she was generally aligned in ideological terms. Even Kennedy replaced a swing voter in Louis Powell back in 1988. 

So as you think ahead to November, remember that it's not just the number of appointments that matters, but how a candidate's appointments would affect the makeup of the court. Then consider these two scenarios:

If President Obama wins, the result will likely be a 5-4 liberal majority, or at worst, a continuation of the status quo.

If a Republican wins, the conservative block will grow from four votes and a conservative-leaning swing voter to an ideological 6-3 majority that could endure well into the 2030s.

Now imagine the caliber of nominee that a President Santorum might put forward.

See you in November.

The 20-Step Facebook Political Process

1. Post links to articles and columns from the New York Times, Washington Post, etc..
2. Poorly informed conservative friends post comments reciting arguments proposed by Glenn Beck, Sean Hannity, Rush Limbaugh, Laura Ingraham, Bill O'Reilly, Ann Coulter, etc.
3. Respond with facts.
4. Poorly informed conservative friends change the subject to other Fox News claims.
5. Respond with facts.
6. Poorly informed conservative friends respond with speculative ad hominem claims about the personal character and true political intentions of various liberal figures.
7. Respond with facts.
8. Poorly informed conservative friends get really pissed off.
9. Post more articles and links from reputable sources of information.
10. Poorly informed and increasingly bitter conservative friends start trolling the resulting comment threads.
11. Respond with facts.
12. Better-informed friends start taking your trolling conservative friends to task, then message you privately to ask what's wrong with your trolling conservative friends.
13. Well-informed conservative friends enter the discussion in an attempt to salvage classic conservative principles from the trolling conservatives' nonsense, making limited, rational and interesting points.
14. Trolling conservative friends blow right past such attempts at intelligent discourse to argue things your well-informed conservative friends never said or implied.
15. Well-informed conservative friends retreat to the sidelines.
16. Trolling conservative friends, now besieged by your better-informed friends, begin complaining about being treated unfairly by mean and uncivil liberals.
17. Respond with facts.
18. Trolling conservative friends unfriend you after making a martyred and melodramatic exit speech, then retreat to the outraged comfort of their partisan echo chamber.
19. Other friends, lurking on these conversations, form conclusions.
20. Lather, rinse, repeat.

Meanwhile, in Portland...

Why Newt won SC: Hatred

 

There's been plenty of punditry on the topic of Newt's "surprise" win in the Palmetto State, but I think it's really quite simple. Bill Clinton won because he felt our pain. Newt Gingrich wins because he channels their hate.

My fellow South Carolinians hate a lot of things, including their prevailing belief that expressing one's hatred in public has been unfairly prohibited by political correctness. There are costs in 21st century America for publicly and explicitly hating blacks, gays, atheists, illegal immigrants, intellectuals and liberals, and so Southern conservatives have learned to speak in code: birth certificates, grades, teleprompters, food stamps, welfare, socialism. The code words express the outlines of their complaint, but not the seething anger that animates their politics.

Not only does Newt understand the immense power of repressed hatred, he also grasps that the one group Americans can still hate publicly without fear of reprisal is "The Media." Newt ran in South Carolina as The Guy Who Really Hates The Media, demonstrating to standing-ovation crowds that when it comes to hating, he's the man.

Of course, Newt has this one little problem nationally, but you know. Politics.

Next stop: Florida.

Romney & Ingraham, 1.20.12: Hoping for bad news

In case the media circus surrounding Newt Gingrich's win in South Carolina yesterday caused you to miss Laura Ingraham's Thursday's radio interview with Mitt Romney, here's a chance to catch up. It's a remarkable glimpse of the dilemma facing the Right today, regardless of its eventual nominee. I transcripted the full text of the most interesting exchange (emphasis mine):

INGRAHAM: Governor, the President and the Vice President, Secretary of the Treasury have said that, look, the economy is getting better, it's creating jobs month to month, it's not growing as fast as anyone wants but it's getting better. You've also noted that there are signs of improvement on the horizon in the economy. How do you answer the President's argument that the economy is getting better in a general election campaign if you yourself are saying that it's getting better?

ROMNEY: Well of course it's getting better. The economy always gets better after a recession. There's always a recovery. There's never been a time anywhere in the world where an economy has never recovered. The question is, has it recovered by virtue of something the President's done, or has he delayed the recovery and made it more painful, and the latter is of course the truth.

The President's policies have made this recession deeper, and it made the recovery more tepid and difficult on the American people. This is the worst recovery we've seen from a recession since Hoover. And President Obama wants to take credit for things getting better. He in fact has made things worse. He's made this recovery take much longer.

But will our economy get better some day? Of course it will. And it will not be thanks to President Obama, it will be in spite of President Obama, and that's of course the message we have to give. If people think the right course for improving an economy is to massively expand debt and the federal government, why they can vote for Barrack Obama. But we know better.

INGRAHAM: But isn't it a hard argument to make if you're saying, like, OK, he inherited this recession, and he took a bunch of steps to try to turn the economy around, and now we're seeing some more jobs, but vote against him anyway? Isn't that a hard argument to make? Is that a stark enough contrast?

ROMNEY: Well, do you have a better one, Laura? (laughs) It just happens to be the truth. (laughs)

We're going to see the numbers in terms of how the economy does. It's very possible, by the way, that the economy will go into a decline again. I mean it's a... I can't tell you that I can predict that it's going to get better, but I think that ... at some point it's going to get better. But I don't think President Obama's helping it. He's been far less effective than he should have been at turning the economy around. I think if we'd elected John McCain we'd be in a much better position today. But do I think that the economy will get better at some point? Yeah. But you know by November of 2012 we'll see if it's gotten better or not.

The key for me is that if you look at what's happened to American employment, the reason that our unemployment rate has come down is because of the number of people who've dropped out of the base of workable, uh, the workforce. And him taking credit for people becoming so desperate that they drop out of the workforce altogether is a very weak position from which he'll be campaigning.

After months of effectively blaming the recession on Obama and "holding him accountable" for the nation's miseries, Republicans are now faced with an increasingly bleak landscape. An improving job market. Surprising growth in the manufacturing sector. Unemployment claims at a four-year low. "Twenty-two consecutive months of private-sector job growth," a White House figure I can't replicate from BLS data, but even its less-sexy alternate isn't bad: job growth for the past 15 consecutive months, and 18 out of the last 22. We added 1.6 million jobs in 2011, and the unemployment rate dropped from 9.1 to 8.5.

To make matters worse for the GOP, despite its hypnotic drumbeat of blaming Obama for everything, the public has consistently continued to acknowledge that our current economic conditions are something the President inheirited, rather than the result of his policies.

The Republican scorched-earth policy in 2010-11 succeeded in limiting the speed of the recovery and damaging Obama's approval ratings (though, interestingly enough, not his favorability ratings), but at an appalling high cost to the nation and the public's view of the GOP as a whole.

And now, after all of this, the economy is improving, the Republican primary season has produced nothing but the prospect of a protracted fight between two unpopular candidates, Occupy Wall Street shifted the national discussion from debt to income inequality, and more than 1 million people in Wisconsin have signed petitions to recall their Republican governor. Reince Priebus must be quietly losing his mind.

After framing 2012 as an economic question, the crisis for the GOP is that they can't publicly cheer against the economy, and the economic data is improving to the point that even their hyper-partisan media supporters can't ignore it. So while they'll cross their fingers and hope for bad news in the coming months, what do they do in the meantime? Based on Romney's response, perhaps they'll draw on a discordant note from the otherwise positive November 2011 jobs report: that the improvement was an accounting trick based on discouraged workers leaving the workforce.

That's not an entirely incorrect observation. Discouraged workers do drop out of the market, and the ratio of job openings to job-seekers remains above 4-to-1 for the third consecutive year. It's a tough recovery, following the worst recession since the Great Depression, which is why getting this stuff right is important.

But the bottom line on Romney's claim that "the reason that our unemployment rate came down is because of the number of people who have dropped out of... the workforce" is that he's flat wrong. The size of that workforce -- the number of Americans who are counted as employed or looking for work -- grew in 2011. Yes, there were month-to-month fluctuations, like the drop emphasized by Republicans in the controversial November jobs report, but the workforce grew again in December, even as the unemployment rate dropped for the fourth consecutive month.

By the Bureau of Labor Statistics' numbers, the Civilian Labor Force stood at 153,250,000 Americans in January 2011. By the end of December, that figure had risen to 153,887,000. That's an increase of 637,000 people. And despite having to include all those new people in the pool of workers, the national unemployment rate dropped by 0.6 percent.

But it gets worse for the GOP.

Republicans have spent three years dismissing out-of-hand any Democratic assessments of federal policies that included estimates of "jobs saved," instead favoring absolute numbers framed from their least-flattering perspective. By opening their critique to say that "Things are improving, but we would have done better," and moving away from their context-free assault on the President's economic numbers, they are moving onto a battefield in which the ground favors the Democrats.   

This doesn't mean Obama wins in the fall. But it does mean the planets are re-aligning.

Change

"I know you are taking it in the teeth, but the first guy through the wall... he always gets bloody... always. This is threatening not just a way of doing business... but in their minds, it's threatening the game. Really what it's threatening is their livelihood, their jobs. It's threatening the way they do things... and every time that happens, whether it's the government, a way of doing business, whatever, the people who are holding the reins - they have their hands on the switch - they go batshit crazy."

-- John Henry to Billy Beane in "Moneyball."

Nation's cats dissatisfied with food, toys, sleeping arrangements

Owner approval ratings hit all-time low

Dec. 21, 2011

For Immediate release

By Frank Comment

TRENTON, NJ – A majority of America's cats* are disappointed with their quality of life, with 57 percent expressing displeasure with their food, 53 percent describing themselves as “bored” or “very bored” with their current collection of kitty toys, and 51 percent indicating that they are currently looking for a better place to sleep.

The key satisfaction numbers continued a downward trend in the annual Wall Street Journal/Cat Fancy Feline Opinion Survey, conducted Dec. 16-19 by Cat Dynamics Research Associates Inc. and funded by the I Can Haz Cheezburgers Charitable Trust.

The trend correlates to continuing declines in Cat Owner Approval Ratings, which have been in retreat since the Clinton Administration. Those ratings dipped to an historic low in the 2011 survey.

Next we have some questions about your relationship to your human staff. [RANDOM ORDER]

C. In general, how would you rate your human(s)'s overall job performance over the past 12 months?

This result renders a Composite Approval Index (CAI) of 40 percent, the worst CAI recorded in the 57 years since Cat Dynamics Research Associates added the question to its annual survey. The response was also the most negative ever recorded in the Waking Respondent Segment Measure (WRSM), with 89 percent of cats who happened to be awake at the time of the survey offering a negative assessment of their owner(s).

“America's cats are not amused,” said Isabelle C. Francis, President and CEO of Cat Dynamics Research. “To be more accurate about it, those who are awake are not amused. So far as we can tell.”

The poll was conducted by bothering 1,634 adult American cats between Dec. 16 and Dec. 19, 2011. It has a margin of error of plus or minus 50 percent.

Complete poll results here.

*Based on responses from cats that were able to wake up for or stay awake through survey interviews.

 

 

 

Divided government, Parte Deux (2012 Senate overview, with spreadsheet)

It's not exactly news that elections can be weird, but when it comes to U.S. Senate "classes," it's the norm. This has to do with Senators' six-year terms and the ups and downs of presidential and mid-term election cycles. 

Here's why: Only 33 of the 100 Senate seats are up for re-election in 2012, and because of those presidential/midterm cycles, there's a distinct rhythm to these things. This is Class I, which picked up eight seats in the notable 1994 Republican Revolution election. This meant that when it came time for Class I to stand election again in 2000, Republicans were defending more seats, and lost four of them, knotting the Senate at 50-50. Then in 2006, the Democrats went on a mid-term tear and gained six seats and 51-49 control of the Senate.

Which brings us to today. Heading into 2012, Class I consists of 23 Democrats and 10 Republicans. From a political science perspective, that means Democrats are on the defensive, because a 23-10 majority means there just aren't that many seats to be gained, and lots of seats to protect .

Kindle Fire & "direct-to-consumer" marketing

Martin Langeveld (Neiman/Harvard) came out this morning with a big prediction for the new Amazon Fire tablet:

The advent of the Kindle Fire will impact every business engaged in advertising, from your local weekly newspaper to Google, Yahoo, Microsoft, AOL, and Groupon, because it will vastly accelerate the transformation to direct-to-consumer marketing by merchants, manufacturers, and service providers, without the traditional interpolation of advertisements to drive buyers to sellers.

It's a good piece, worth reading.

But there's a logic to commercial information in this Media Interregnum that I need to keep emphasizing, because it's as true now as it was when I began beating this drum six years ago.

1. Advertising (renting the attention of consumers to sellers) puts publishers in the business of representing the interest of the seller;
2. As consumer attention fragments and advertising becomes ubiquitous, basic market principles will continue to drive down the ad rates that publishers receive;
3. Commercial media saturation creates a new problem for buyers.They need help cutting through the low-value sales-pitch clutter to find products (CNET) and services (Angie's List) that actually suit their individual needs;
4. Businesses that recognize this opportunity move from representing the interests of the seller (help me sell the thing I want to sell) to representing the interests of the buyer (help me select the right thing for me).
5. By adding the option of moving directly from research to purchasing ("My Shopping Cart"), businesses generate revenue by adding value for the user (comparing products in useful ways), the seller (providing quality commercial information about the seller's product)  and both buyer and seller (by handling the transaction). The result is a virtual marketplace in which a share of every transaction belongs to the business that brings buyer and seller together;.
6. Internet-era businesses following this logic have created successful digital marketplaces for products that are the same no matter where you buy them (Amazon), products that can be hard to find in your town (HuckNroll), discounted products (O.co), and products that can be shipped cheaply and returned easily (Zappos); 
7. The challenge for publishers who serve specific physical communities (news of interest only to this town or that one) is to organize efficient, tailored virtual marketplaces for brick-and-mortar businesses in those communities. These transactions are often more complex than buying books online, but they are also more valuable because they are more complex;
8. To capture that value, local publishers must shift from publishing and structuring information solely on behalf of sellers and put the user at the center of their business model. Only then can they create marketplaces in which they receive a cut of every transaction;
9. Doing this will not only create a more profitable business model, it will improve the trust that individual users give to the non-commercial information a publisher provides;
10. And, finally, by doing this, they will begin to reap higher advertising rates. Because if you're a car dealer, whose attention do you really want to rent? The person who just wants to watch a ball game, or the person who is -- today, right now -- actively looking to buy a car?

What is truly conservative?

This is Henry Wallace, a Republican businessman, agricultural scientist and newspaper editor who -- despite his party affiliation -- became Franklin D. Roosevelt's first Secretary of Agriculture in 1933. For more than seven years, Wallace did that job so well that Roosevelt named him as his as his vice-presidential running mate in 1940. Had it not been for a revolt among Democratic delegates at their 1944 convention, Vice President Wallace would have become the 33rd President of the United States instead of Harry S. Truman.

There are all sorts of interesting facts about Wallace, an Iowan whose research into crop yields changed the way we grow corn today and later led to the first genetic corn hybrids, which have done wonders to increase food production around the world.

But here's what's truly remarkable about the man from my perspective. As Wallace arrived in Washington in 1933 at the height of the Great Depression, America's heartland had become a radical place. Midwestern farmers had been suffering through their own recession for years before the stock crash in 1929, and the Depression only made their already desperate crisis worse. By the time Wallace took office, American farmers -- generally considered then as now a practical and conservative bunch -- were on the brink of open, violent rebellion. Not right-wing rebellion, mind you. Left-wing, socialist, communist rebellion.