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Tidwell: Presidential election and Supreme Court picks will ultimately end gridlock – one way or the other

Editor’s note: this analysis, written by Russ Tidwell, has far-reaching national implications, given pending redistricting litigation in Texas and elsewhere. Tidwell is well-qualified to speak on this – he was the Political Director of the Texas Trial Lawyers Association for 26 years, and is now with the Texas Association of Consumer Lawyers. He has been in the thick of every Texas redistricting battle since 1981.

By Russ Tidwell

The Scalia Supreme Court vacancy brings into focus the stakes in the Presidential election – the path to end Washington gridlock, which is ultimately rooted in the way districts are drawn.

While President Obama was winning a majority of the vote in the 2012 election, Democratic candidates, not Republicans, were winning a majority of the total vote for Congress. Republicans retained solid control of the U.S. House, however, because of carefully gerrymandered districts that leave Republican officeholders beholden only to angry voters who dominate the Republican Primaries – And neither those voters nor their Congressmen want to see any compromise with the hated Obama.

Only the U.S. Supreme Court can fix this.

Earlier: On SCOTUS vacancy, Republicans are probably screwed

Republicans in the U.S. Senate will probably deny confirmation to any Obama nominee, hoping for a Republican Presidential victory in November. But more than just the Scalia seat is on the line.  The next Presidential term will see an additional three Octogenarians still on the court.  The average age of departure from the court is 78.  When the new Presidential term begins, Anthony Kennedy will be 80, Stephen Breyer 78 and Ruth Bader Ginsberg 83.

This unusual confluence of age will allow the next President to shape the future of voting rights, for better or worse, for generations.

Let’s explore how we got in to this national paralysis of gridlock and how we can get out.

We need to understand racially polarized voting patterns.  After Democratic President Lyndon Johnson signed the 1964 Civil Rights Act, Anglo voters in the South rather rapidly transformed from Yellow Dog Democrats (previously the segregationist party in the South) to solidly Republican in Federal elections.

The Republican “Southern Strategy” sped this along, with campaigns enflaming emotions over busing, affirmative action, fears of quotas and the like. Remember the code words: welfare Cadillacs, law and order, forced busing, states’ rights and cutting taxes.  By the end of the Reagan administration, a majority of Anglo voters nationally were voting to “cut taxes”, now convinced that any government spending was just going to more handouts to minorities.  Meanwhile, programs to support the middle class we being strangled and wealth redistributed to the top.

My background working with trial lawyers brought to my attention studies of how the human brain works, showing how this transition could be accomplished so rapidly and uniformly.  Our brain stem, or reptilian brain, controls motor functions and survival instincts, fight or flight, etc.  Repeated appeals to this part of the brain — fear of the other tribe, for example — can create code to control voting patterns, preempting any further thought process.  This is the brain mechanism that can “trump” the others.

Racially polarized voting is not a theory to be debated.  It has been repeatedly proven up in Federal Court for the last fifty years. This is a little known fact, but the U.S. Supreme Court requires plaintiffs to demonstrate a pattern of racially polarized voting to satisfy certain redistricting and voting rights claims. Experts do a precinct by precinct analysis of demographics and election returns.  The expert report showing this pattern of racially polarized voting filed most recently by Texas plaintiffs was not even contested by the State.  The patterns are nationwide.

I bring this up to back up an observation I have about the 2010 off-year election.  It was a White Backlash election.

In 2008, a record turnout brought us the first Black President.  Voter participation always falls off in the off-year, but in 2010, minorities were particularly complacent, having just helped elect a President of color.  However, a large percentage of Anglos were enraged (remember the Tea Party signs “We want our Country back”) and they voted disproportionately.

This was a national phenomenon.  Democrats lost many Governors, control of the U.S. House and perhaps more importantly, more than 700 seats in state legislatures that were about to do redistricting.

Republicans gained control of numerous legislative bodies, some for the first time in a hundred years.

The 2011 redistricting process provided the opportunity for these Anglo majorities to draw maps designed to keep them in power indefinitely and to control Congress.  They systematically packed some districts with a high percentage of minority voters and fragmented other minority communities into multiple Anglo majority districts.

This allowed them to rig the process to deny minority voters fair representation in Congress or the State Legislature.  Consider the makeup of the congressional delegation in these states carried at least once by President Obama:

Screen Shot 2016-02-21 at 8.40.40 AM

You can see why President Obama’s remaining agenda is blocked.  In these major states carried by the President, Republicans control two-thirds of the seats in Congress in a rigged process.  The Red States are worse.  These are not swing districts.  There are precious few of them. The Republican officeholders only have to answer to their primary voters who hate the Black President.  Thus, Gridlock.

The agenda of the next Democratic President will also be largely blocked for years – no matter who it is. We are not going to get single payer health care or free college education or a living minimum wage until Democrats get to appoint more Justices to the Supreme Court.

There are good Democratic thinkers such as George Lakoff who are showing us the way to win elections when the deck is not stacked against us.  This is Elizabeth Warren messaging.  I remain optimistic about the ultimate success of a progressive agenda in this country when we are no longer hamstrung by redistricting.

With the election system rigged only the U.S. Supreme Court can fix redistricting through enforcement of the Voting Rights Act and the 14th Amendment to the U.S. Constitution.  The Court has to stop the packing and cracking of minority communities.

The process can only begin with the election of a Democratic President this fall.  Sadly, Republican Presidents have not appointed justices friendly to voting rights in decades.

We must recognize that the process will take years with litigation in many states culminating after the 2021 redistricting.  Cases still pending in Texas, North Carolina, Virginia and Arizona can lay the legal foundation for fully restoring voting rights, but not until 2021.

The Obama Coalition must hang together to win the 2016 election.  Democrats have won the popular vote in four out of the last five Presidential elections, but those elections have been close.

I have one haunting concern about our electoral prospects this year and it is that reptilian brain theory of the American voter. The survival instinct imbedded there is politically dangerous.  Looking back on it forty-four years later, why did the very progressive George McGovern lose 49 states in the 1972 general election? I am still struck by this sweeping loss on the heels of all the social and economic progress of the 1960s.  McGovern ran against what was a very unpopular war in Vietnam, but now, thinking of our reptilian brains, were voters viewing that war opposition in the larger, more powerful frame of containment of our then arch enemy, the Soviet Union?  Did they code McGovern as not willing to keep us safe in the Cold War?  Something like that undercut him in a devastating way.

Food for thought when we Democrats have to decide who to put forward to win this year’s General Election.

We live in an era of terrorism, magnified irrational fear, and anti-Muslim hysteria.  We have seen the mood of the country turn on a dime after Paris and San Bernardino.  The brain stem is doing what it evolved to do, default us to safety.

The Republican attack machine will spend more than a billion dollars exploiting the weaknesses of our nominee, whoever it is, and provoking fear of his or her capacity to keep us safe.

We have one candidate who has been the subject of those attacks for years – and still standing.  A former Secretary of State, former resident of the White House, who is perceived to be mildly Hawkish.

Another candidate is not vetted in a national general election, who voted against the first Gulf War, the one popular world-wide for reversing Iraq’s invasion of Kuwait.  The same candidate sought conscientious objector status in the Vietnam era.

I want to see a progressive agenda succeed in this country.  I believe the New Deal Era built the middle class.  It takes government investment in hard and soft infrastructure, fair regulation of business excess, and a progressive tax system.  We don’t have the votes in Congress to get there in the near term.

But we see the path to get there. A Democrat has to win the 2016 general election.

By the way, who is your very favorite Supreme Court Justice? The notorious RBG, maybe? Appointed by Bill Clinton.

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On SCOTUS vacancy, Republicans are probably screwed

There’s really no other way to put this: fallout from the death of Supreme Court Antonin Scalia in West Texas last weekend has zero likely positive outcomes for Republicans, either from a legal or political standpoint.

The immediate knee-jerk from the GOP leadership in the Senate, from Majority Leader Mitch McConnell and Judiciary Committee Chairman Chuck Grassley (who controls the first stop for any Supreme Court nominee), to the two U.S. Senators running for President, Ted Cruz and Marco Rubio, was to immediately dismiss even the possibility that President Obama should nominate a replacement for Scalia, leaving it for the next President. Sight unseen, Republicans were proclaiming an Obama pick to be DOA, leaving a Supreme Court vacancy open for a year, and insinuating that a President who had, at the time, 341 days left in office is without Constitutional duty or power.

GOP leaders have softened in the hours since, either by backing away from earlier statements or by their silence. It is slowly sinking in that no matter what they do, they lose.

The simple fact of the matter is that the President has an absolute Constitutional requirement to appoint Justice Scalia’s replacement. It is equally true that the U.S. Senate has an absolute Constitutional requirement to deal with it. But the Senate dealing with it can legitimately range from confirming Obama’s choice, to making paper airplanes out of the paperwork the White House sends over.

I totally get it – the Senate Republicans want to run out the clock on the Obama Presidency, work to make sure the Republican nominee wins the Presidential election, and preserve their conservative wing of the court. At the same time, however, it is slowly dawning on them that the process of running out the clock also makes it much less likely that they’ll win the Presidential election. They find themselves in a terrible “catch 22” situation.

It is in examining the Senate Republicans’ choices that it begins to sink in that there’s no likely way for them to win. Here they are:

Do nothing: 

Obama could send a nomination that the Republican leadership does nothing with. They don’t call hearings. They don’t call for a vote. The nomination just languishes over time. Most of an entire year. The GOP messaging would likely be that the pick of a President this late in his final term isn’t valid, thus the next President should pick. This is similar to their first knee-jerk reaction following Scalia’s passing.

There are two huge problems with this, one legal and the other political. The legal ramification applies to any scenario in which the Senate doesn’t approve an Obama pick: it leaves a 4-4 tie between the conservative and liberal wings of the court. A tie on the Supreme Court means that the lower court ruling stands. There are many lower court rulings currently pending in which conservatives were counting on the high court to overturn. This will not happen until a full Supreme Court is seated. Given that President Obama isn’t likely to nominate a justice of conservatives’ liking, it probably wouldn’t happen anyway, but with a ninth justice seated, conservatives would at least have a chance of convincing the new justice on a case-by-case basis of the logic of their argument on a case.

The political problem is even more perplexing to them. It’s potentially huge, and it’s a game-wrecker for them: Republican attempts to push a nomination for an entire year, into the next Presidency, open up a huge opportunity for Democrats to point out to an essential coalition — the ones who showed up in droves to elect Barack Obama — that the GOP doesn’t believe Obama’s is a legitimate Presidency – the fastest way I know of to create the anger and motivation to reignite that coalition and elect a Democrat this fall.

Go through the process, but obstruct:

After Obama sends over his nominee, hold hearings, slowly, before voting down the nominee. Then repeat. Then repeat again if necessary. Run out the clock on the Presidency. The GOP messaging would have to focus on the nominees being unqualified. They would side-step the “Obama isn’t a legitimate President” insult, and instead concentrate of Obama’s nominees being clowns.

The main problem with this lies in the likely high quality of the President’s nominee(s), and/or the likelihood that a nominee would mirror important Democratic coalition goals – African-Americans, Hispanics, women, LGBT, etc. He could send over somebody who recently sailed through Senate confirmation without a hitch, making it more difficult for Republicans to explain why they recently voted to confirm this person for one thing, but suddenly believe this person is unqualified for another thing. Obama has several choices for nominees such as this, including the current Attorney General, or a D.C. appeals court judge who sailed through on a 97-0 vote recently. He could send over any number of nominees who the American Bar Association deems highly qualified. The biggest problem with Republican messaging on this front is that ultimately the American people have to believe the message., A highly qualified nominee blunts that considerably. The most likely outcome is the same as in the “do nothing” scenario – Republicans are seen as obstructionist, leading to anger and high motivation for the Obama coalition, and a much greater likelihood that a Democrat will be elected President this fall.

Confirm an Obama nominee:

This is the scenario some Republican Senators are probably secretly praying for, and it’s the most unlikely outcome. It entails somehow convincing the President to nominate somebody who would be seen as a consensus candidate – somebody progressive enough for Obama to nominate, but one harmless enough for Republicans to confirm.

The hitch in this plan: who the hell are we talking about? At the end of the day, they have to come up with a name – a specific human being. And the political parties are so utterly polarized at the moment that it is likely that this human being doesn’t exist. And even if he or she does exist, Senators like Ted Cruz — who is one of the few Republicans who might win from this situation even if the entire rest of his party loses – would invent reasons why this person is actually Satanic.

It is likely that anybody the President is willing to nominate would be — if for no other reason than by virtue of the nomination — unacceptable to a Republican Senate majority. And even if any given GOP Senator would privately be fine voting for the nominee, it would be out of fear of that Senator’s primary voters that they’d feel obligated to fight against the nomination.

As unlikely as this scenario is, it is the one with the least political damage done to the Republican nominee for President, but it could come at a cost to Republican Senators in contested primary elections in future years.


There may be other long-shot strategies Senate Republicans could discuss behind closed doors – like statutorily changing the number of Supreme Court justices from nine, to eight or seven (yes, Congress can do that) – all of which lead to the same place as the above scenarios – angering and motivating Democrats and contributing to a Democratic win for President. It should increasingly obvious to Senate Republicans that it doesn’t matter what they do, it is simply undeniable that Justice Scalia’s death could not have come at a worse time, and any reaction leaves them in a considerably weakened position than they were before, both legally and politically. Their options aren’t great.

Update: too serious for you? Fair enough. Here’s The Onion’s take.

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