Monday Wake Up Call – October 5, 2020

The Daily Escape:

Fall on the T Lazy B Ranch. Ennis, MT – October 2017 photo by Ed Coyle photography

Lost in the noise on Trump’s COVID diagnosis Friday was that the US Supreme Court agreed to hear two Arizona cases that could end the Voting Rights Act, and hurt the prospects of the Democratic Party. Ian Millhiser wrote the linked article for Vox, and he calls it the biggest threat to voting in decades:

“The specific issue in the Democratic National Committee (DNC) cases concerns two Arizona laws that require certain ballots to be discarded. One law requires voting officials to discard in their entirety ballots cast by voters who vote in the wrong precinct (rather than simply not counting votes for local candidates that the voter should not have been able to vote for).

The other law prohibits “ballot collection” (or “ballot harvesting”) where a voter gives their absentee ballot to a third party, who delivers that ballot to the election office. (Arizona is one of many states that impose at least some restrictions on ballot collection.)”

These cases are being brought under the Voting Rights Act of 1965, (VRA) signed by LBJ, which prohibited racist voting laws that were prevalent at the time. In 2013, the Supreme Court in Shelby County vs. Holder effectively deactivated the Act’s preclearance regime that required states with a history of racist voting practices to “preclear” new election rules with officials at the DOJ.

And the Court’s decision in Abbott v. Perez (2018) held that lawmakers enjoy a strong presumption of racial innocence so that it is now extremely difficult to prove that lawmakers may have acted with racist intent (for example, in gerrymandering a district) except in the most egregious cases.

These two Arizona DNC cases involve a different element of the VRA, the so-called “results test” that prohibits many election laws that disproportionately disenfranchise voters of color.

Now that the Supreme Court has agreed to hear these cases, the Court’s Republican-appointed majority could potentially dismantle the results test. It might water down that test to such a degree that it no longer provides a meaningful check on racism in elections.

As a federal appeals court said in an opinion striking down the two laws:

“…uncontested evidence in the district court established that minority voters in Arizona cast [out of precinct] ballots at twice the rate of white voters.”

Sound racist to you? Of course!

One reason that people in Arizona may vote in the wrong location is that some Maricopa County voters, for example, must travel 15 minutes by car to vote in their assigned polling location, having passed four other polling places along the way.

In addition, many Arizona voters of color lack easy access to the mail and are unable to easily travel on their own to cast a ballot. As the Arizona appeals court explained:

“…in urban areas of heavily Hispanic counties, many apartment buildings lack outgoing mail services,”

And only 18% of Native American registered voters in Arizona have home mail service. The appeals court also said that Black, Native, and Hispanic voters are:

“…significantly less likely than non-minorities to own a vehicle and more likely to have inflexible work schedules.”

Thus, their ability to vote might depend on being able to give their ballot to a friend or a canvasser who will take that ballot to the polls for them. In any event, a majority of the appeals court judges who considered Arizona’s two laws decided that they violated the Voting Rights Act.

So, now it is appealed to the Supreme Court. More from Vox:

“As a young lawyer working in the Reagan administration, Chief Justice John Roberts unsuccessfully fought to convince President Reagan to veto the law establishing this results test; some of his memos from that era even suggest that the results test is unconstitutional. And Roberts is, if anything, the most moderate member of the Supreme Court’s Republican majority.”

This case will be decided by the Court without Amy Coney Barrett. That means it will take at least two conservative justices to side with the three remaining liberal justices, a tall order in these times. Of course, a four-to-four decision would let the appeals court decision stand.

Time to wake up America! Nothing we can do now will change the decision on these cases. That chance was lost in 2016. And the rights of voters of color to cast their ballots is in greater peril now with Ginsburg off the bench.

What we can do today and most importantly on November 3, is to stop the right wing in its tracks.

There can be no further gutting of voting rights in the future.

 

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Roberts Returns to the Dark Side

The Daily Escape:

Lake Blanche, Upper Cottonwood Canyon, UT – 2020 Galaxy S10 photo by criked

On Tuesday, the Supremes issued another opinion. This one narrows the First Amendment’s separation of church and state. The case, Espinoza v. Montana Department of Revenue, was a 5-4 decision, with the five conservative justices in the majority, and the four liberal justices dissenting.

From Slate: (emphasis by Wrongo)

“The Montana Constitution contains a “no-aid” provision that bars the state from providing public funds to religious institutions, as do 37 other state constitutions. To work around this rule, the Legislature granted tax credits to residents who donate money to Big Sky Scholarships, which pays for students to attend private schools, both secular and sectarian. (Montana’s demographics ensure that the only sectarian schools that participate are Christian.) In other words, residents get money from the state when they help children obtain a private education, including religious indoctrination. In 2018, the Montana Supreme Court found that this program violated the state constitution’s no-aid clause. But instead of excluding sectarian schools, the court struck down the whole scheme for all private education.”

Chief Justice John Roberts’s opinion revived Montana’s tax credit scheme when he announced a new Constitutional principle: Once a state funds private education, “it cannot disqualify some private schools solely because they are religious.”

Twenty-nine states, the District of Columbia, and Puerto Rico all provide tax credits or vouchers to families that send their children to private schools. Under Espinoza, they must now extend these programs to private religious schools. More from Slate:

“This decision flips the First Amendment on its head. The amendment’s free exercise clause protects religious liberty, while its establishment clause commands that the government make no law ‘respecting an establishment of religion’.”

In essence, Roberts is now saying that the Establishment Clause supersedes the Free Exercise Clause.

Some background: In Zelman v. Simmons-Harris, the Supreme Court ruled that, under the Establishment Clause, states were allowed to fund private schools through vouchers or tax credits. Now the court has declared that, under the Free Exercise clause, most states are compelled to fund private religious schools.

Over the past 18 years, the Court’s conservative majority has revolutionized church-state law.

How did the court do this? The barrier between church and state took a hit when five justices permitted state financing of sectarian schools in Zelman. It nearly collapsed when the court expanded religious institutions’ access to taxpayer money in 2017’s Trinity Lutheran v. Comer, which held that states cannot deny public benefits to religious institutions simply because they are religious.

The court claimed that their new rule was actually hidden in the meaning of the First Amendment’s Free Exercise clause—even though, as Justice Sotomayor pointed out at the time, separating church and state does not limit anyone’s ability to exercise their religion.

More from Slate. Roberts, from the Espinoza opinion: (italics are in the quote)

“A state violates free exercise…when it “discriminate[s] against schools” based on “the religious character of the school.” The government, Roberts explained, has no compelling interest in preserving the separation of church and state beyond what the First Amendment requires. Nor does the government have any interest in protecting taxpayers’ right not to fund religious exercise that infringes upon their own beliefs.”

Said the Chief Justice:

“We do not see how the no-aid provision promotes religious freedom…”

In theory, states could abolish public funding of private schools entirely to avoid funding religious schools, but that’s what the Montana Supreme Court did. And Roberts just condemned that decision as “discrimination against religious schools”, because Montana had originally funded all private schools.

Roberts may be a master at minimizing losses (hits to the credibility or reputation of SCOTUS), while maximizing returns for his masters (conservative victories). In most of the cases where he has sided with the liberals, his opinion has basically boiled down to “lie better the next time.”

That was true in the abortion and DACA cases this term, and in the Census case last term.

So, based on this decision, religious entities (of the right sort) are not only eligible for government funding, they are entitled to it. That, and more equipment for the military.

This is what the America conservatives want. What could go wrong?

The state requires children to go to school. It also provides a school system for those children in order to meet that requirement. If you choose to send yours to a private, accredited/licensed school instead, that cost should be borne by you, not by the taxpayers.

Public funding for religious schools, along with tax-free status for churches, gives too much political power to religions.

That’s exactly why separation of Church and State is so crucial.

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Sunday Cartoon Blogging – April 19, 2020

One week ago, the cumulative US COVID-19 death toll was 15,000. Seven days later, the death toll is now 36,000. That means in a week, about 21,000 Americans have died, a growth rate of 140%. In the past two months, here’s how US coronavirus deaths have grown:

  • Feb 17: 0 deaths
  • March 17: 111 deaths
  • April 17: 36,997 deaths

Although deaths are a lagging indicator for how successful we are in our efforts to contain the Coronavirus, and despite all the happy talk about flattening the curve, this looks like a rocket ship leaving the launch pad.

The Navy has now tested about 94% of the crew on the USS Theodore Roosevelt, the aircraft carrier that was sidelined with a Coronavirus outbreak. As of Friday, 660 crew members (of about 4,865) have now tested positive for Coronavirus.

However, of those 660 who were positive, 60% have not shown any symptoms associated with the illness. This should cause us to question the true rate of infections in the US. The proportion of people who are asymptomatic carriers worldwide remains unknown, but at 60%, the Theodore Roosevelt’s figure is higher than the 25%-50% range Dr. Fauci laid out in early April.

Taking these two data points together, America should proceed carefully as it leaves the lockdown.

On to cartoons. Another day, another spin of the big blame wheel:

With big business, some things never change:

If not his signature, then certainly his fingerprints:

The right’s narrative that can kill:

Individual responsibility has consequences:

John Roberts has to live with his Wisconsin voting decision:

 

 

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Supreme Court Voting Remotely, Denies Wisconsin Voters the Right to Vote Remotely

The Daily Escape:

Super moon, Crested Butte, CO – 2020 photo by itsaberglund

First, here are the latest national pandemic numbers from The COVID Tracking Project: (as of 4/7):

  • The good news is that the daily rate of increase in new infections is now in single digits (see green above).
  • Deaths have again spiked, and the percentage of deaths to total cases is rising steadily.
  • Daily testing has stalled (again) at about 150,000/day. Growth in testing is again lagging growth in new infections.

Next: The Wisconsin primary debacle: Wisconsin held its presidential primary on Tuesday, and on Wednesday, Bernie Sanders dropped out of the race for the Democratic nomination. Unifying the Party will be much easier than in 2016. The stakes are different, the mood is different, and Bernie seems to like Biden more than he liked Hillary.

But that was far from the most surprising thing about the Wisconsin primary. The big Wisconsin news was that the US Supreme Court decided a case called “Republican National Committee v. Democratic National Committee” along political lines. The symbolism is glaring.

The issue before the Court was whether to stay a lower court’s decision that would have extended absentee balloting for a week due to the Coronavirus. And the most notable race wasn’t the Democrat’s primary. It was a conservative Republican’s battle to keep his seat on Wisconsin’s state Supreme Court. From the WaPo: (brackets by Wrongo)

“The scant, 10-page opinion issued Monday night highlighted the [US Supreme] court’s ideological and partisan divide. The justices’ inability to speak with one voice on matters as serious as the coronavirus pandemic and voting rights raised concerns about the legal battles bound to proliferate before the fall elections.”

The great irony in the SCOTUS decision is that the justices didn’t meet together. They are practicing social distancing, because of the Coronavirus, conducting their business via teleconferences. They have also suspended all public Court proceedings for the current term, because, you know, public safety.

But the Supreme Court’s Republican majority felt it was proper to insist that Wisconsin’s normal rules about elections be followed, and hold the primary as if there was no pandemic, no public health threat.

The best comment on the ideological divide in America today came from Tom Sullivan’s column, where he quotes a 2018 observation about conservatism by Frank Wilhoit: (emphasis in the original)

“Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect….So this tells us what anti-conservatism must be: the proposition that the law cannot protect anyone unless it binds everyone, and cannot bind anyone unless it protects everyone.”

More on Wisconsin from Sullivan:

“This morning’s online headline at the Washington Post reads, ‘The coronavirus is infecting and killing black Americans at an alarmingly high rate.’ Wisconsin Republicans on Tuesday made them stand on line in Milwaukee for hours to vote during a deadly pandemic. That will show them.”

And this tweet from Sen. Cory Booker underlines the evil intent:

“Milwaukee is home to the largest African-American community in Wisconsin. Don’t tell me that forcing people to choose between their health and their right to vote today is anything but an appalling act of voter suppression. https://t.co/4Leq1CtMHZ”

— Cory Booker (@CoryBooker) April 7, 2020

Chief Justice Roberts may claim that he is only calling balls and strikes, but he’s using a different strike zone for his friends.

Finally, let’s spend a moment remembering that both John Prine and Bill Withers died this week, Prine from the Coronavirus.

Both released their debut albums in 1971. Both were among the true greats. Here’s a Prine song that shows his social consciousness. Written in 2005, it was prescient. He wrote about the kinds of people who would eventually lead the nation in 2020 in his “Some Humans Ain’t Human”:

Sample Lyric:

Have you ever noticed When you’re feeling really good There’s always a pigeon  That’ll come shit on your hood Or you’re feeling your freedom And the world’s off your back  Some cowboy from Texas Starts his own war in Iraq

Those who read the Wrongologist in email can view the video here.

And this Withers song about Vietnam has always hit Wrongo hard. “I Can’t Write Left-Handed”:

Those who read the Wrongologist in email can view the video here.

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Trump Still Wants His Citizenship Question

The Daily Escape:

Sandia Mountains, New Mexico – 2019 photo by cameforthegames

On June 27, the Supreme Court held that Commerce Secretary Wilbur Ross’s March 2018 order directing the Census Bureau to add a citizenship question to the 2020 Census questionnaire could not go forward. At the time, we all thought that there would be no such question on the census.

Now, that’s no longer true.

“President Trump and Attorney General William P. Barr began working to find a way to place a citizenship question on the 2020 census just after the Supreme Court blocked its inclusion last month, Mr. Barr said on Monday, adding that he believes that the administration can find a legal path to incorporating the question.”

More from Barr:

“I felt the Supreme Court decision was wrong, but it also made clear that the question was a perfectly legal question to ask, but the record had to be clarified…”

The ruling left open the possibility that the citizenship question could be added to the census if the administration came up with a better rationale for it.

Here’s a way to look at what the Administration means: The Supreme Court said we couldn’t do this. Our reasoning was stupid and insulting. So now, we have to come up with something better. Yeah, we said it was too late for that, but we’re working on a brilliant new reason.

And you shouldn’t make anything of the fact that the lawyers the DOJ had working on it just quit:

“Barr also acknowledged that the career Justice Department lawyers who had worked on the census question had little appetite to continue on the case after Mr. Trump inserted himself into the process…. The Justice Department announced a day earlier that it was replacing them, a nearly unheard-of move.”

On Monday, the plaintiffs in the case asked a NY judge to block the DOJ lawyers’ withdrawal because they did not demonstrate “satisfactory reasons” for the change. On Tuesday, the judge denied the request, except for two DOJ attorneys.

Barr also said that the Trump administration would soon reveal how it plans to add the question, but he wouldn’t detail exactly how it would be justified.

On Monday, Speaker Pelosi announced that she intended to schedule a full House vote “soon” to hold Barr and Commerce Secretary Wilbur Ross in contempt of Congress for defying subpoenas for documents related to the census question. This had been recommended last month by the House Oversight and Reform Committee.

If Barr goes forward, the question will be provisionally added, and a new time clock for the case starts again.

But, Trump may have screwed the pooch. He admitted that the whole point was to favor Republican redistricting, which was exactly what his lawyers have said is not the case, because that’s unconstitutional. Trump said we need the census citizenship question for many reasons:

“Number one, you need it for Congress — you need it for Congress for redistricting,” he said Friday. “You need it for appropriations — where are the funds going? How many people are there? Are they citizens? Are they not citizens? You need it for many reasons.”

Trump apparently doesn’t realize that America bases redistricting on the population of the district, not the citizens in the district. Yet, there’s still a strong possibility that his question will be part of the census.

In the case mentioned above, four Supreme Court justices said they would vote for literally any position the administration takes on the issue. And a fifth vote (Chief Justice Roberts) searched in vain for any possible fig leaf that would allow him to join them. When he couldn’t, he sided with the liberals.

Americans should be outraged that the Trump administration willingly engaged in an illegal action, and then lied about it in federal court. They should be outraged that four members of the Supreme Court thought that was just fine. The Chief Justice thought it could have been fine, had they come up with a less blatant pretext, which he invited them to provide. Any Chief Justice worthy of the title would have simply ruled that the process couldn’t be salvaged.

The big story here isn’t the census question. It’s the DOJ’s legal team refusing to continue working on the case. This is unprecedented, and a really big deal.

The most plausible explanation for their quitting is that they told the Supreme Court it had to decide by June 30th, or the question couldn’t be included. If they now have to go back to SCOTUS, they would have to admit that was a lie.

We have to hope that the administration’s malevolence will be ruined by their incompetence.

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Sunday Cartoon Blogging – June 30, 2019

While most of the media was blathering about the Democratic debate dog-and-pony-shows, the story of the week was the Gerrymandering decision that the Supreme Court announced on Thursday. Its decision in Rucho v. Common Cause says that the federal courts have no business policing partisan gerrymanders. That issue is for states to handle.

Chief Justice John Roberts:

“Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void….The States, for example, are actively addressing the issue on a number of fronts.”

The Conservative justices are saying that citizens have no recourse to the federal courts to solve what has become a major weakness in our democracy.

Roberts is now three-for-three, with Citizens United opening the floodgates to unlimited corporate money funding candidates. Then, with Shelby County vs. Holder, he eviscerated part of the Fourteenth Amendment and defanged the Voting Rights Act. And now, in Rucho v. Common Cause, he delegates to state legislative majorities that were enabled by the first two rulings, the ability to perpetualize (? probably not a word) their party’s time in office by drawing unrepresentative district maps with no recourse to judicial appeal.

Justice Elena Kagan dissented:

“For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights….Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections….”

Wrongo’s shorter John Roberts:

“The federal government can’t do anything about your state stripping you of representation. You have to go back to the people who stripped you of representation and ask them.”

This has enabled a charade of a democracy to replace the one that we thought we had. Chief Justice Roberts’s legacy will be the death of democracy. All of today’s cartoons will concern gerrymandering.

The domestic violence will continue:

The Roberts decision simplified:

Elections have consequences:

 

Supremes sit idly by while America burns:

 

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Voting Rights and John Roberts

From USA Today:

National and local voting rights activists, worried about threats to casting ballots nationwide, are setting up command centers, staffing hotlines and deploying thousands of monitors to polling sites across the country to ensure voters can get to the polls.

There has been plenty of talk about “rigged’’ elections in the 2016 presidential campaign. Link that with the Supreme Court’s rejection of a key section of the 1965 Voting Rights Act, and civil rights and voting rights activists say they’re concerned about possible roadblocks at the polls next week.

According to the Brennan Center for Justice, 14 states will have new voting restrictions in place, ranging from photo ID requirements to early voting cutbacks, to registration restrictions.

Some of the blame for this can be laid at the door of the Supreme Court and Chief Justice John Roberts. Stephanie Mencimer in MoJo writes that Roberts “had it in for the Voting Rights Act”:

In 2013, when Chief Justice John Roberts Jr. issued the most far-reaching Supreme Court decision on voting rights in the 21st century, he finally succeeded in gutting a civil rights law he has been fighting his entire career. For three decades, Roberts has argued that the US has become colorblind to the point where aggressive federal intervention on behalf of voters of color is no longer necessary—and this case, Shelby County v. Holder, was the pinnacle of that crusade.

Roberts honed his views on race and voting as a clerk for Justice William Rehnquist and later in the Reagan DOJ. Rehnquist redefined opposition to civil rights laws as a commitment to color blindness, using this leap of logic to undermine the 1965 Voting Rights Act.

The Atlantic reports that Roberts has a history of insisting that the US is a post-racial, colorblind society, a viewpoint he emphasized in his 2013 Shelby County v. Holder opinion. That decision removed a critical component of the Voting Rights Act: the requirement that jurisdictions with a long history of voting discrimination submit any changes in voting procedures to the DOJ for “preclearance,” to ensure those changes didn’t have a discriminatory impact.

Preclearance blocked more than 700 discriminatory voting changes between 1982 and 2006. But in the Shelby opinion, Roberts asserted that such protections were no longer warranted. He said that federal oversight of the jurisdictions in question, mostly states in the Deep South, was outdated and unjustified.

After the Shelby decision, several states passed new voting restrictions that were overwhelmingly directed at minorities. On the day the Shelby decision was handed down, Texas announced that the only two forms of state voter identification it would accept were a driver’s license or a gun license—a measure the DOJ had previously blocked.

  • Georgia moved some municipal elections in predominantly minority areas from November to May, depressing turnout by nearly 20% in one instance.
  • Alabama implemented a strict voter ID law—and then shut down driver’s license offices in every county where more than 75% of voters were African American.
  • The most blatant was North Carolina’s omnibus voting law. Passed shortly after the Shelby decision, the NC law imposed strict ID requirements, limited the registration window, and dramatically cut early voting during times traditionally used by African Americans.

Some lower courts are walking back the Shelby decision. In July, the 4th Circuit Court of Appeals blocked enforcement of North Carolina’s voting law, saying its provisions “target African-Americans with almost surgical precision.”

Will the lower court ruling cause Roberts to rethink his Shelby opinion? No.

In August, the Supreme Court, without a Scalia replacement, would not hear an appeal of the 4th Circuit’s blocking of North Carolina’s voting law, but Roberts wrote that he personally would have allowed most of the law to take effect.

According to Harvard’s Alex Keyssar, the popular vote in North Carolina for the state legislature and members of Congress for the last several years has been pretty much evenly split, but the seats are overwhelmingly Republican. And that matters. That’s how the Republican legislature put together its voting laws.

Voter suppression and partisan gerrymandering are the greatest threats to our democracy. Suppression provides the opportunity to gerrymander. Taken together, suppression and gerrymandering provide the means to disenfranchise groups of the electorate from our democracy.

The anger in this nation is because people can feel things slipping away, even if they don’t all agree on why it is, or who to blame.

At some point, it won’t matter anymore. But by then, we might have a Republic in name only.

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The Battle to Replace Scalia

With the death of Justice Scalia, the Supreme Court has become even more of a BFD than it usually is in our politics. Republicans are setting the terms of the current battle by saying that Mr. Obama should not even bring forward a candidate for the Senate’s Advise and Consent process.

The Republicans fought for 40 years to get a Conservative majority, and will not give that up without a fight. This is the first time since Clarence Thomas replaced Thurgood Marshall in 1991 that the ideological balance on the Court could actually change. In the last six cases, from Ginsberg through Kagan, either a Republican president filled the seat of a conservative justice, or a Democratic president filled the seat of a liberal justice.

So the stakes are very high, both substantively and politically.

On the other hand, the voters might rediscover that presidential elections should be about serious issues. At the top of the list: Who will pick the justice that creates a new Supreme Court majority?

A brief history from Paul Waldman at the WaPo:

The Senate…used to approach nominations to the Supreme Court with a simple standard: If the nominee was qualified and wasn’t a criminal or a drunk, he or she would probably get confirmed with the support of both the president’s party and the opposition…But we may have entered an era with an entirely different starting presumption: not that a well-qualified nominee deserves confirmation, but that senators ought to oppose any nomination from a president of the other party.

Waldman provides this list of recent nominees and how the Senate voted:

Antonin Scalia (1986): 98-0
Anthony Kennedy (1987): 97-0
Clarence Thomas (1991): 52-48
Ruth Bader Ginsburg (1993): 96-3
Stephen Breyer (1994): 87-9
John Roberts (2005): 78-22, 20 of 42 Democrats in favor
Samuel Alito (2005): 58-42, 4 of 45 Democrats in favor
Sonia Sotomayor (2009): 68-31, 9 of 40 Republicans in favor
Elena Kagan (2010): 63-37, 5 of 40 Republicans in favor

Since Chief Justice Roberts in 2005, we see that our political divide is not simply about Congress and  the President, the Supreme Court is now also entrenched in the polarization. Justice Kagan’s approval is instructive. She was well-qualified, (a former dean of Harvard Law School and Solicitor General), and had no absurd legal views. Nevertheless, only five Republicans voted to confirm her. Three of those senators — Richard Lugar, Olympia Snowe, and Judd Gregg — were moderates who are no longer in the Senate.

In the case of a Scalia replacement, every Republican senator trying to decide what to do will know that if they vote to confirm any Democratic nominee for this seat, a primary challenge from the right will probably happen whenever they run for re-election.

But the GOP-controlled Senate ignores its responsibilities at its peril. 24 GOP-held Senate seats are up for election this cycle to just 10 held by Democrats. A few (enough) of those GOP Senators are in states that were won in 2012 by Barack Obama including: Kirk in Illinois, Toomey in Pennsylvania, Portman in Ohio, Ayotte in New Hampshire, Johnson in Wisconsin, and Rubio’s open seat of Florida. Since Republicans hold 54 seats, losing 4 of them could flip Senate control.

But, this is a situation where the Democrats really need to get control of their message machine, or they’ll risk getting overrun again in the perception battle.

The best guess is that is unlikely that control of the Senate changes hands in 2016, so divided government will likely remain with us, assuming a presidential win for the Democrats. As Scott Lemieux says in the New Republic:

As the stakes of Supreme Court nominations get ever higher, getting Court vacancies filled during periods of divided government is going to become increasingly difficult. Depending on the results of the 2016 elections, this dysfunctional future could very soon become our present.

Could a non-functioning Supreme Court finally be the last straw? We might soon find out.

We know that Chief Justice Roberts is concerned with the public perception of SCOTUS as an institution. Perhaps if the White House and the Chief Justice held discussions about the President nominating a moderate, and then Roberts spoke publicly about the need for quick consideration, the political logjam might be broken.

Absent that, it’s hard to avoid the feeling that we are heading towards a breaking point in this country as the polarization stretches the functioning of our government in every arena.

Our Constitution gives the Senate veto power over executive and judicial branch appointments with no mechanism for resolving a deadlock. That is a bug, not a feature.

It’s amazing that the system has remained functional for as long as it has.

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