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Philadelphia Apologizes

Growing up in Southeastern Pennsylvania, I was naturally a Philadelphia Phillies fan. Over the summer of my eighth year, I watched my team soar to a 6 1/2 game lead in the National League on September 20, 1964, with just 12 games to go. Then followed one of the epic collapses in the history of the game, as the Phillies lost 10 games in a row, including seven at home in Connie Mack Stadium, ending the season tied for second place.

The Phillies were led by the power-hitting rightfielder Johnny Callison, with 31 home runs and 104 runs batted in, and the great pitcher Jim Bunning, who was later a rather less great senator from Kentucky. On June 21, 1964, Bunning threw the major leagues’ seventh perfect game, and the first in the National League since 1880.

For fans of the sport of “wait ’til next year,” the brightest spot of the Phillies’ 1964 season was third baseman Dick Allen, who had one of the outstanding rookie years of major league history. Allen led the team with 201 hits, 125 runs, and a .318 batting average; he was second to Callison in homeruns (29) and runs batted in (91). Only Allen and Callison played every game of the season.

At that age, I was not much aware of players’ race, likely owing to the prominence of radio in baseball coverage in those years. I knew that Jackie Robinson had broken baseball’s “color line” when he was called up to the Brooklyn Dodgers in 1947, but I didn’t then know that it was only in 1959 that the last major league team played its first African-American – the Boston Red Sox. The Phillies were the third-to-last team to be integrated, when John Kennedy played five games in April and May of 1957.

Dick Allen was known in baseball as Richie Allen, although he had never gone by “Richie” before. Interestingly, Jackie Robinson’s name was not actually Jackie, but Jack. Those who saw Ken Burns’s documentary on Robinson’s life and career recently on PBS may have noticed that Robinson’s widow, Rachel, consistently referred to Robinson as “Jack.” She reserved “Jackie” for their son, Jack Robinson, Jr., who died before his father, at the age of 24 in an auto accident.

American society has a tendency to treat black men in either of two ways: infantalize them or demonize them. Calling Dick Allen by a diminutive nickname he never used, Richie, seems to me to be a form of infantalization. Calling Barack Obama a post-colonial Kenyan Socialist Muslim is a form of demonization.

The way I remember it, Dick Allen put up with being called Richie for a year or two, but at some point asked to be called Dick – which was, after all, his name. That presumption of even such small request from a black man was enough to move Allen from infantalization to demonization. Allen had stepped out of bounds, at least for Philadelphia Phillies fans of the 1960s.

When I was in grade school, a close friend and I took a train with his father to Philadelphia for a double-header at Connie Mack. It was probably my first baseball game. I don’t remember who the Phillies played. What I remember is that, early in the first game, Allen smashed a line drive that was still rising when it hit the outfield wall. Allen had almost unbelievable power in a baseball age of power hitters. More than once, Allen hit homeruns that cleared the outfield stands. The scout who had recruited Allen once said that Allen was the only hitter he ever saw who hit the ball as hard as Babe Ruth had.

Allen’s next at bat came during a Phillies rally. Callison had doubled, prompting wild home-crowd cheers, but as Allen came to the plate the cheers turned to boos. At the age of 10 or 11, I couldn’t understand why home fans would boo their greatest power hitter, coming to the plate after smashing a drive off the outfield wall. It made no sense.

But of course it did make sense, in the context of 1960s Philadelphia. The Philadelphia Inquirer once called Allen “the most booed man in Philadelphia from April to October.” In that context, almost anything Allen did was a provocation – like asking to be called by his actual name.

Once Frank Thomas, a teammate with a history of making racial remarks, swung a bat at Allen, provoking a fistfight. The Phillies punished Thomas by releasing him the next day, but they prohibited Allen from speaking about the incident. Since Thomas was no longer on the team, he was free to talk, but Allen was not free to respond – and what Phillies fans heard was that the arrogant black player had gotten a white player fired.

Eventually, Phillies’ fans’ verbal abuse of Allen took physical form. Fans pelted Allen with coins, cups, ice, and whatever else was handy. Allen took to wearing his batting helmet in the field, for protection from his own team’s fans.

By resolution of the Philadelphia City Council, the City of Philadelphia recently apologized to Jackie Robinson for the horrific treatment Robinson got in 1947 from the Phillies and their fans. That’s a great thing – the apology was hard-earned and badly overdue. I’m sure Rachel Robinson appreciated it.

But the City of Philadelphia has more work to do. Dick Allen deserves his City Council resolution too.



The presidential election year that most closely resembles this one, I have come to believe, is 1964.

That November, less than a year after succeeding to the presidency, Lyndon Johnson won 61.1 percent of the popular vote – the largest percentage of any presidential candidate since the Electoral College has been selected predominantly by popular vote; that is, since 1824. LBJ’s popular vote percentage exceeded those of Franklin Roosevelt, Richard Nixon, Ronald Reagan, and all others since James Monroe’s re-election tally in 1820.

Johnson won 44 states, plus the District of Columbia in its first-ever presidential vote, for an Electoral College victory of 486 to 52. Johnson’s victory in Alaska was the first and last for any Democratic presidential candidate. He was the first Democrat ever to win a presidential vote in Vermont; the first to win a majority in Maine since 1852 – Maine and Vermont being the only two states that FDR never won.

Barry Goldwater won only six states – his home state of Arizona, plus the deep-South states of Alabama, Georgia, Louisiana, Mississippi, and South Carolina. Lyndon Johnson won 25 states (and D.C.) with more than 60 percent of the vote.

LBJ’s victory carried all the way down the ballot, through the House and the Senate to state legislatures throughout the country. Even though Democrats already held 66 Senate seats and 258 House seats, in 1964 they added two in the Senate and 37 in the House.

The Democratic tide washed through state houses as well. In New York, for just one example, Republicans began 1964 in firm control – they held the governorship, both Senate seats, and wide majorities in both houses of the New York legislature. In the 1964 election, they lost the Senate seat that was up – incumbent Republican Kenneth Keating was defeated by Democratic carpetbagger Robert Kennedy – and their large majorities in the State Senate and the Assembly both flipped to large Democratic majorities. Republican leaders of both houses lost their re-election bids.

Johnson’s electoral success was anything but fore-ordained.

Democrats began the 1964 campaign deeply divided between mostly northeastern liberals and mostly southern conservatives. Johnson brilliantly outmaneuvered the conservatives. He was the only candidate nominated at the convention, which ended with then-Attorney General Robert Kennedy introducing a filmed tribute to President Kennedy, preceded by a 16-minute ovation.

Republicans also were deeply divided between their moderate “Rockefeller Republican” wing and their conservative wing. New York Governor Nelson Rockefeller began the primary campaign as the front-runner, but nose-dived after the recently divorced Rockefeller married the even more recently divorced Margaretta Murphy.

Other moderates tried to pick up the slack – Pennsylvania Governor William Scranton, Michigan Governor George Romney, and Maine Senator Margaret Smith. But in the end, Arizona Senator Barry Goldwater was unstoppable, and although the Republican convention was bitterly divided between moderates and conservatives, Goldwater won the nomination on the first ballot.

In his acceptance speech, Goldwater famously defended “extremism in the defense of liberty” and condemned “moderation in the pursuit of justice.” Many moderates took this as an attack on them, and moderates divided between those supporting Goldwater against Johnson (Scranton, Nixon) and those sitting the election out (Rockefeller, Romney).

Goldwater had a penchant for offending with off-hand remarks, like his description of President Eisenhower’s administration as “a dime store New Deal,” and his speculation that “this country would be better off if we could just saw off the Eastern Seaboard and let it float out to sea.”

He joked about lobbing a nuclear bomb into the men’s room of the Kremlin, and, at one point, a poll of psychiatrists called into question Senator Goldwater’s mental stability – a notion the Johnson campaign was glad to second with its memorable “Daisy Girl” ad, which basically said that a President Goldwater would get us all killed in a nuclear war.

The general election campaign was in large part a referendum on the 1964 Civil Rights Act. Senator Goldwater was one of only six Republican Senators to vote against the final bill. Although 21 Democratic Senators voted against the bill, President Johnson successfully positioned his party as the pro-civil rights party, and his campaign labored hard to position Goldwater as a racist.

Although Republicans were harshly divided, Democrats were not confident. They knew to expect a white backlash against Johnson’s strong support for racial equality, and they were afraid how big the backlash might be.

But on November 3, 1964, Johnson won huge. Or, in today’s parlance, Johnson won “yuge.”

Against the expectations of everyone except maybe The Donald himself, it does look like Donald Trump will probably be the Republican presidential nominee. But whoever wins, the convention and the party will almost certainly be deeply divided. A number of prominent Republicans will probably decline to endorse Trump if he is the nominee, and Trump will probably decline to endorse the nominee if it isn’t Trump.

Trump is a powerfully divisive candidate. His polling is extremely negative. Moderates and independents are offended by his manner, his rhetoric, and his political principles – to the extent that his principles can be divined. Trump’s ability to offend makes Goldwater look benign; his off-the-cuff remarks make Goldwater look Socratic. His statements on race edge beyond Goldwater’s conservatism into fascism.

RealClearPolitics’s polling averages have Hillary Clinton ahead of Trump by 11 percent of the vote, and Senator Bernie Sanders ahead by 16 percent. Still, Democrats in 2016 are right to be worried about the general election, as their 1964 predecessors were.

Americans have never elected a president with no government experience, whether electoral, high-level appointive, or high-level military – and Donald Trump has utterly no government experience, at any level, for any period of time.

Even his business experience does not seem to be especially apt. Trump has acted more as a salesman and an investor than as an executive. He has headed no large corporations, not even a large division of a corporation; he has no experience in moving a bureaucracy.

His ideas do not come from experience with the world, or from consultation with experts; they come from the instincts of his “good brain,” and his policy positions seem to be motivated mainly by a need to grab attention. Although he has written 18 books, it’s not apparent that he has read that many. We know he watches cable TV news, reads tabloid newspapers, and spends a whole lot of time on Twitter.

All these are reasons that Trump should lose by a landslide, but still Democrats are nagged by the unprecedented nature of Trump’s campaign so far, and the quite correct concern that we can’t know for sure how the general election campaign will go. Any nominee of a major party might become president, and that in itself is cause for worry about Trump.

But there remains the possibility, even after Republican voters lose their heads in sufficient numbers to nominate The Donald, as their predecessors nominated Barry Goldwater, that the general electorate will resoundingly reject Republican folly.

And if that rejection resounds down through the ballot, here’s how that might look.

Democrats now hold 46 Senate seats; seven Republican seats are considered to be at substantial risk, and Democratic control of the Senate is not at all improbable. Democrats now hold 188 House seats; if Democrats add 37 seats in 2016, as they did in 1964, they will control the House.

Of the 99 houses of state legislatures (Nebraska’s legislature is unicameral), Republicans hold majorities in 69. But 23 of those legislative houses are in states that voted for Barack Obama both times. And 10 of those would flip from Republican to Democratic control with a change of four seats or fewer: one house each in Colorado, Maine, New Hampshire, New Mexico, New York, Virginia, Washington and Wisconsin, and both houses in Nevada.

The Republican Party is imploding. The Republican Old Guard is so thoroughly anti-Trump that it is resorting to the most hated man in the Senate, Ted Cruz, as their last, best hope to stop The Donald from destroying their Grand Old Party. I don’t want Trump to win the nomination, although Ted Cruz is hardly my idea of good news. If either of them is the nominee, the downside for the country is almost unfathomable.

But the upside is President Clinton or President Sanders in a landslide: the end of a 45-year conservative majority on the Supreme Court, the end of rule by Mitch McConnell and Paul Ryan, the end of Citizens United, the end of union-busting in Wisconsin and Ohio, the end of abortion restrictions masquerading as women’s health protection, the end of Big Coal.


Confirm Justice Garland

As all literate Americans know, Justice Antonin Scalia died on February 13, 2016, creating a Supreme Court vacancy with a little more than 11 months remaining in President Obama’s term. Within hours of Justice Scalia’s death, Senate Majority Leader Mitch McConnell announced that the Republican-controlled Senate would not consider any nominee to replace Scalia that President Obama might select.

Initially, the Republican rationale was a claim that an 80-year tradition bars Senate confirmation of Supreme Court nominees in the last year of a presidential term. The problem with that claim was that it was false: in the 80-year period in question, the Senate has confirmed three Supreme Court nominees during election years.

Desperately seeking substantiation, Republicans tried out the idea that then-Senator Joe Biden had created a “rule” in 1992 against filling Supreme Court vacancies during election years. That wasn’t true either. Senator Biden said only that in the event of an election-year vacancy and nomination, the Senate should “seriously consider” deferring confirmation hearings until after the election.

Today, Senate Judiciary Committee Chair Orrin Hatch announced a new rationale for the Senate’s obstinate refusal even to conduct hearings on President Obama’s nominee to fill Justice Scalia’s seat: “Throughout its history, the Senate has never confirmed a nominee to fill a Supreme Court vacancy that occurred this late in a term-limited president’s time in office.”

 What an impressive statement that seems! President Obama is asking the Senate to do something it has never done in its history!

I have called the Republican position on Justice Scalia’s seat “a mighty piece of sophistry.” But Senator Hatch’s version reaches exquisite new levels of sophistry.

Senator Hatch refers majestically to the entire history of the United States Senate, stretching back to March 4, 1789 – more than 227 years! But his reference to Senate precedent applies only to “term-limited presidents.” Presidential term limits were adopted by the 22nd Amendment to the U.S. Constitution, which became effective upon the inauguration of President Dwight Eisenhower – on January 23, 1953.

In other words, Senator Hatch’s sweeping invocation invocation of the history of the United States Senate’s dealings with Supreme Court nominees made by term-limited presidents goes back only 63 years – less than one-third of Senate history.

In all of American history, of our 44 presidents, only five have been term-limited: Presidents Eisenhower, Reagan, Clinton, Bush (43) and Obama.

Before President Obama, none of the other four term-limited presidents had to deal with a Supreme Court vacancy occurring during his last year in office. So Senator Hatch’s historical claim comes down to this: during the five presidencies that have been subject to term limits under the 22nd Amendment, none before President Obama have had a Supreme Court vacancy as late in the second term as Justice Scalia’s death.

Before President Obama, the term-limited president with the latest-occurring Supreme Court vacancy was President Reagan – Justice Lewis Powell, Jr., retired on June 26, 1987, which was 19 months before President Reagan was term-limited out of office. President Reagan nominated Robert Bork to Justice Powell’s seat. No one objected that Ronald Reagan was term limited, or that the people should “weigh in”; the Democratic-controlled Senate, with Joe Biden chairing the Judiciary Committee, held full hearings. On October 23, 1987, the Senate rejected the nomination.

On October 29, 1987, President Reagan tried again: he nominated Douglas Ginsburg to the Powell vacancy. No one objected that President Reagan was term-limited; no one claimed that never before had a term-limited president made a Supreme Court nomination so late in his second term.

When Ginsburg’s marijuana use became public, he withdrew his name from consideration. On November 11, 1987, President Reagan tried one more time – he nominated Anthony Kennedy. The Senate convened hearings on December 14, 1987, and Kennedy was confirmed by the Senate on February 3, 1988. There was no protest that a lame duck president should not fill a Supreme Court vacancy. Confirmation was unanimous.

Republicans need to cut it out. There is no tradition of leaving Supreme Court seats vacant, not in presidential years, not for term-limited presidents, not for any reason at all. The Republicans’ refusal to consider President Obama’s nomination of Merrick Garland to fill Justice Scalia’s seat is completely new. It is partisan, it is unprincipled, and it is ugly.

It’s All About the Base

On the day that Justice Antonin Scalia died, Republican Congressional leadership discovered the “principle” that Supreme Court vacancies occurring during the eighth year of a presidency should not be filled by the sitting president.

Republicans claim no legal basis for this principle, because there is none – not in the constitution or in any law. Initially, they claimed a basis for their principle in precedent, citing an 80-year “tradition” of not confirming Supreme Court nominees in election years.

The problem with that argument, as I’ve pointed out, is that there is no such tradition. In the last 80 years, three Supreme Court nominees came up for consideration during election years, and two were confirmed. The third, President Johnson’s nominee for chief justice, Abe Fortas, was rejected by a heavily Democratic Senate – not because it was an election year, but because of substantial ethics questions about Fortas’s conduct while he was serving as an associate justice.

More recently Republicans fled to a 1992 speech by then-Senator and Judiciary Committee Chair Joe Biden, claiming that the speech had established a “Biden Rule” against consideration of a Supreme Court nomination during an election year.

The problem with that argument is that Senator Biden said no such thing. Speaking on June 25, 1992, Biden actually said that if a vacancy should occur that summer, and if a nomination should be made in the days leading up to the presidential nominating conventions, the nomination would be unnecessarily politicized. Given that, Biden said that President Bush should wait until after the elections to nominate a candidate. If the president went ahead with a summer nomination, Biden said that the Senate would give “serious consideration” to deferring the confirmation hearings until after the election. Serious consideration of delaying the confirmation process a few months is a long way from a blanket refusal.

So the Biden Rule, if rule there be, is that if a president nominates a Supreme Court justice right before presidential nominating conventions, the Senate should “seriously consider” putting confirmation off until after the election.

Senate Majority Leader Mitch McConnell announced a new rule that bears no family resemblance to the “Biden Rule”: no president should nominate a Supreme Court justice during the final year of the presidency; and if a president does make such a nomination, the Senate should refuse to consider the nominee, should refuse even to meet with the nominee, and should refuse the nominee the basic courtesy of shaking hands.

The Republican reasoning, which I’ve called “a mighty piece of sophistry,” is that “the American people need to decide who is going to make this appointment rather than a lame-duck president.” The implication, of course, is that if President Obama makes the nomination, then the American people will not have decided. Apparently, the voting public that elected and re-elected President Obama decided it was okay for Obama to nominate Sonia Sotomayor to the Court on May 26, 2009, and Elena Kagan on May 10, 2010, but not anybody at all on any day during 2016, before or after the election.

Whenever people do something that has never been done before, it seems logical to consider whether there is some other unprecedented circumstance that motivated the unprecedented decision. And of course I’m implying that the unprecedented circumstance of an African-American president motivated the unprecedented refusal to consider any Supreme Court nominee at any time during 2016.

Okay, I’m not implying it – I’m saying it outright.

I’m not saying that Senator McConnell is a racist. I’m saying that McConnell is protecting the Republican leadership, including himself, from further backlash from the party’s primary voters.

There has been a ton of ink spilled in the last nine months or so about the “anger” of Republican voters about “betrayals” by Republican leadership. This seems strange to me, since Republicans in Congress have fought tooth and nail against President Obama’s agenda, with significant successes.

Republicans engineered the shut-down of the federal government, nearly brought about a catastrophic federal debt default, shouted “you lie” at the president from the floor of Congress, and apologized to one of the most notorious oil polluters in history for the president’s promise to hold BP to account. Republicans have manifested animosity to President Obama to a degree not seen since the last days of the Nixon Administration.

So how were Republican voters “betrayed”? They were betrayed because McConnell did not keep his promise to limit President Obama to one term. They were betrayed because Congress did not keep Obama from taking executive action on air pollution and global warming, immigration, Guantanamo Bay, and a host of other matters. They were betrayed because Republican leaders allowed a black man to be the commander-in-chief of the United States military, ordering people around as if he was, well, the president. Republican voters were betrayed, in short, because President Obama lives in the White House, works in the Oval Office, and exercises all of the constitutional and statutory powers of the presidency. They were betrayed because Republican leaders failed adequately to protect and defend white male Christian heterosexual predominance against the onslaught of diversity and multi-culturalism.

This is the “anger” that Republican voters are expressing. And if that anger is sufficient to nominate Donald Trump over the nearly unanimous preferences of Republican leadership, then Republican leadership itself is at serious risk. Thus Senator McConnell’s refusal to consider President Obama’s nominee – who would put a pause on the expansion of gun rights and the suppression of voter rights, marriage rights and reproductive rights – this refusal is McConnell’s last stand. If he fails, he knows that establishment Republican leadership is finished.

That’s why McConnell can’t yield, and won’t yield, no matter how badly the general electorate turns against his position. In other words, with apologies to Meghan Trainor, it’s all about the base, ’bout the base.

Stopping the Unstoppable

Republican caucus and primary voters have thus far selected 104 convention delegates, and tomorrow Nevada Republicans will pick 30 more. A week from tomorrow, Republicans in 12 states will select 724 delegates – more than five times as many as before then.

Of the 12 states voting on March 1, has enough data to track only four – 538 gives Florida Senator Marco Rubio the slightest of edges over Donald Trump in Georgia and a more distinct advantage over Trump in Virginia; Texas Senator Ted Cruz holds an unsurprising lead over Trump in Texas; and Trump holds a small lead in Oklahoma.

In addition, shows Cruz ahead in polling in Arkansas, Rubio ahead in Minnesota, and Trump ahead in Massachusetts. RealClearPolitics shows no polling at all for Vermont and Wyoming, and no polling from this year in Alabama and Tennessee. RCP shows a single 2016 poll for Alaska, showing Trump four points ahead of Cruz in early January.

This is not my idea of an unstoppable force.

There is a twist – ten of the 12 March 1 states, by contrast with three of the four early states, have voting thresholds. In other words, in those ten states, a candidate must win a specified minimum share of the vote to be eligible for delegates. The candidates whose popular vote totals exceed a state’s threshold divide up the state’s delegates in proportion to their share of the vote. By stiffing the lagging candidates, thresholds are intended to winnow the field to maybe two or three candidates.

In five of the March 1 states, the threshold is a relatively high 20 percent of the vote. Five other states impose thresholds varying from five percent to 15 percent of the vote. Given where Ohio Governor John Kasich and Dr. Ben Carson stand in polling relative to the thresholds, there is a substantial possibility that neither one will win more than a handful of the 724 delegates at stake on March 1. This will focus attention on the three leading candidates.

Cruz and Rubio each seems to think that his path to the nomination lies in eliminating the other and becoming the remaining alternative to Trump. That strategy could work for Rubio, but I’m not so sure if it could work for Cruz.

But in a three-person race, there’s another option: Cruz and Rubio both remain in the race and do well enough to deprive Trump of a majority of the delegates. If Cruz continues to win among evangelicals and the hard Right and Rubio maintains or enhances his standing among more moderate Republicans, they can deny Trump a majority.

This is plausible partly because, in the three states to vote so far, Trump took 35 percent, 33 percent, and 24 percent of the vote. He is polling nationally at 34.2 percent, and his RealClearPolitics average has not cracked 37 percent at any point in the entire campaign. Trump consistently polls with very high negatives, and consistently does poorly as a “second choice” candidate. He has, in the phrase of the punditocracy, a “low ceiling,” and it is plausible that his poll numbers will grow very little as the field narrows. In particular it seems unlikely that the Jeb Bush vote will shift to the Trump column, and in general.

In this scenario, Rubio and Cruz need each other: Rubio needs Cruz to win in Alaska, Arkansas, Texas, and Wyoming, and Cruz needs Rubio to win in Georgia, Minnesota and Virginia. Bonus points if Cruz or Rubio wins in Tennessee or Alabama. That would leave Trump with Massachusetts, Oklahoma and Vermont.

As we saw after Iowa, Donald Trump doesn’t lose well. If he were to lose not just one state on March 1, but a handful, maybe even a majority of them, no one really knows how he would react.



What Comes Next

Supreme Court Justice Antonin Scalia apparently died in his sleep on Friday night at a vacation resort in rural Texas. After he missed breakfast, his room was checked and his body was found. At 2:45 p.m., according to the Los Angeles Times, a priest was sent for to deliver last rites.

Within just a few hours, Senate Majority Leader Mitch McConnell declared that President Obama should forego nominating a replacement, leaving the vacancy for the next president. By the time of the Republican presidential debate on Saturday evening, the standard Republican position was that, as Senator Ted Cruz put it, “we have 80 years of precedent of not confirming Supreme Court justices in an election year.” Or, as Senator Marco Rubio insisted, “it has been over 80 years since a lame duck president has appointed a Supreme Court justice.”

This is a mighty piece of sophistry, even by the standards of this year’s Republican presidential campaign.

The 80-year old event to which the Republican line refers was the nomination and confirmation of Benjamin Cardozo in 1932 – which is also the year that Franklin Roosevelt took the presidency from Herbert Hoover.

But here’s the problem – Herbert Hoover was not a “lame duck” when he nominated Cardozo, or when Cardozo was confirmed. Hoover ran for and won the Republican nomination, losing big to FDR in November 1932. Justice Oliver Wendell Holmes, Jr., resigned in January 1932, and Justice Cardozo took his seat on the Supreme Court in March.

Justices William Brennan, Jr., was also nominated and confirmed in an election year. Justice Sherman Minton notified President Eisenhower in September 1956 of his intention to retire, and Brennan took the seat the next month.

Justices Lewis Powell, Jr., took office in an election year, 1972, but he was nominated in October 1971 and confirmed in December, to fill the seat vacated by Justice Hugo Black in September 1971.

When Justice Powell left the Court in 1987, President Reagan nominated Robert Bork to replace him, then, after Bork was defeated in the Senate, nominated Douglas Ginsburg, who ultimately withdrew after his marijuana smoking past came to light. Reagan nominated Anthony Kennedy in November 1987, and Kennedy was confirmed and took his seat in February 1988.

In other words, four justices have taken their seats in election years, from Cardozo to Kennedy, during the time period invoked by Republicans. Republicans disqualify Kennedy and Powell because the vacancies and nominations occurred before the election year. They disqualify Powell and Brennan because the presidents who nominated them were not “lame ducks.” But of course neither was Herbert Hoover when he nominated Cardozo.

In support of their argument, Republicans refer to Justice Abe Fortas, who was nominated by President Johnson to succeed retiring Chief Justice Earl Warren in June 1968. Johnson was a true lame duck, having declined to run for re-election. The seat was technically not vacant, since Chief Justice Warren was staying on pending appointment of his replacement.

But the notion that Justice Fortas was not confirmed out of concern that the appointment should be made by President Johnson’s successor is pure fiction. Democrats held 64 seats in the Senate at the time. Richard Nixon was by then the clear front-runner for the Republican nomination, and Robert Kennedy had been shot and killed, leaving Hubert Humphrey the probable nominee. Although the general election race later tightened considerably, at the time of Johnson’s nomination of Fortas in June, it seemed likely that Nixon would beat Humphrey. Even late in September, when the confirmation debate occurred, Nixon was distinctly ahead of Humphrey in the polls. The notion that a heavily Democratic Senate rejected Fortas in order to leave the chief justice vacancy for the next president is ridiculous.

In fact, Fortas was defeated because of ethical lapses during his tenure as an associate justice. His continuing political relationship with Johnson – Fortas remained one of Johnson’s most important advisers while Fortas sat as a justice – and his receipt of a then-considerable $15,000 speaking fee paid by corporate interests did him in.

To be clear, then: there is not, and there never has been, an American tradition of leaving election year Supreme Court vacancies for the next president.

On the other hand, Republicans are proposing to leave a Supreme Court seat vacant for a minimum of a year. Even if the next president nominates Justice Scalia’s successor on Inauguration Day, and even if the next Senate confirms that nominee with stunning speed, the new justice won ‘t be seated for more than a year from now.

Such a protracted vacancy is extremely rare. The only modern vacancy of that duration was the interim between Justice Fortas and Justice Blackmun, from May 14, 1969, to June 9, 1970. That vacancy was prolonged not be design, but by President Nixon’s unsuccessful nominations of Harrold Carswell, then Clement Haynsworth, before winning confirmation for Justice Blackmun.

The last time before that a Supreme Court seat was vacant for a year or more was during the Civil War – from the resignation of the Southerner John Campbell on April 30, 1861, until the seating of David Davis on October 17, 1862. In that case, the delay was Lincoln’s, not the Senate’s – Lincoln was resisting the pleas of advisers to repay his 1860 victory with a plainly partisan award of a judicial seat to the political engineer of that victory, an Illinois trial court judge with no substantial appellate experience. He successfully filled two other vacancies while the Campbell seat remained open.

In short, no matter how you look at it, the Republican argument that leaving a vacancy for the next president would honor “precedent” or “tradition” is utter nonsense. Unfortunately, given Senate Republicans’ nearly pathological hatred for the President, it seems unlikely that they will relent. This is an unforced Republican error, and Democrats should take every advantage of it.

First, President Obama should nominate a moderate, maybe from the South or the Midwest, preferably a Republican, and ideally a Latino or Asian-American. Against the protests that Obama should push for a solid liberal, I would just point out that substituting a justice even just a skosh or two to the left of Justice Kennedy for Justice Scalia, the most partisan conservative justice to sit on the Court in generations, would produce a sea change in Supreme Court jurisprudence.

Then Democrats in the Senate should get on their highest of high horses about the unprecedented indignity of the Senate majority’s refusal for months on end to vote on the nomination: weekly press conferences and speeches on the Senate floor, complete with lessons in American history and civics.

Hillary Clinton and Bernie Sanders should unite in the selfless cause of denying themselves the opportunity to pick Justice Scalia’s successor, while less selflessly dwelling at length on the difference between Democratic presidential candidates who want the government to operate as constitutionally intended, and the Republican presidential poseurs.

When all that doesn’t work, Senate Democrats should strategically select a couple of bills important to Republicans but not so much to the rest of the country, and subject them to relentless filibusters – the old-fashioned kind of filibuster, where senators take the floor for days on end, in this case to denounce the Republican refusal to carry out its constitutional duty to advise and consent.

The Supreme Court is important, and Republicans’ unprecedented stand against a nominee not yet nominated must be shamed for the sake of history. But in a stroke of luck, Democrats have been handed a three-fer: a Supreme Court vacancy, an opportunity to turn the seven-year Republican stone wall into a victory in the eyes of history, and an opportunity to hold Republican presidential candidates to their own words on Saturday night.



Harold Stassen was a rising Republican star in the late 1930s and 1940s. Nicknamed the “boy wonder” of Minnesota politics, in 1938 he was elected governor at the age of 31, after two terms as the Dakota County district attorney. He gave the keynote address at the 1940 Republican National Convention. Governor Stassen resigned in April 1943 to serve as a naval commander on Admiral Bull Halsey’s staff in the Pacific theater during World War II. Still in uniform, Stassen was an American delegate to the San Francisco conference that led to the creation of the United Nations.

Former Governor Stassen ran a credible campaign for the Republican presidential nomination in 1948. Relatively few states held primaries in those days, and Stassen won more of them than any other candidate. With Stassen leading, New York Governor Thomas Dewey made his stand in the Oregon primary, where polls showed Stassen leading.

Dewey and Stassen agreed to a debate before the Oregon primary, broadcast on national radio. The topic was whether the Communist Party should be outlawed, and Stassen, despite being clearly the most liberal candidate in the race, took the “pro” position and Dewey stood “anti.”

Dewey famously said that “you can’t shoot an idea with a gun,” and it was generally believed that Dewey had beaten Stassen in the debate. Dewey then won the Oregon primary with about 52 percent of the vote to 48 percent for Stassen, and re-took the momentum from Stassen.

At the convention, delegates were divided among three major candidates – Dewey, Stassen, and Ohio Governor Robert Taft – and several minor candidates. It took three ballots for Dewey to win a majority and the nomination – the last Republican convention to go to more than one ballot. (Democrats last went more than one ballot in 1952, selecting former Illinois Governor Adlai Stevenson on the third try.)

Although Dewey beat Stassen, he lost the election to Harry Truman, the Chicago Tribune’s reporting to the contrary notwithstanding. Stassen was appointed president of the University of Pennsylvania, where he served for five years, followed by two years in an appointive position in the Eisenhower Administration.

Stassen ran for president again in 1964, barely registering in the primaries and winning no convention delegates. In 1968, he won even less of the primary vote, but did get two delegates. He tried again in 1980, 1984, 1988 and 1992, to no discernible effect. He became known not as a one-time governor and national leader, but as a “perennial candidate.” The pathos of his candidacies was only underscored by the ridiculous toupee Stassen wore in his later years.

It is a truism of political campaigning, even if not entirely true, that candidates don’t drop out because they’re losing; they drop out because they’re out of money. But in a post-Citizens United world, it’s not clear that even losing candidates ever need to run out of money.

This year’s Republican presidential campaign counts five candidates who do not reach a 5 percent polling average in any of the first three voting states. If a candidate can’t crack 5 percent in Iowa, New Hampshire or South Carolina, three very different states, the candidate really should give up, even if the money hasn’t run out.

The five candidates in question are Carly Fiorina, former Virginia Governor Jim Gilmore, former Arkansas Governor Mike Huckabee, Kentucky Senator Rand Paul, and former Pennsylvania Senator Rick Santorum. Huckabee and Santorum ran reasonably well in 2008 and 2012, respectively, rendering them vulnerable to the illusion that they are popular; they are not. Fiorina and Paul are certainly well known, both having made national splashes. Their problem is not a lack of voter awareness, it’s a lack of voter approval. And I have no idea what Gilmore is doing, or thinks he’s doing.

Fiorina has never held public office, although she lost a Senate race in California in 2010. Santorum and Huckabee haven’t held office for nine years. Gilmore’s term as governor ended in 2002, although he chaired a Congressional advisory committee until 2003. He ran briefly and unnotably for president in 2007, and ran for Senate in 2008, losing by almost 2 – 1 to Mark Warner. Paul is a first-term senator who must either quickly re-focus on re-election to the Senate, or find himself unemployed in 2017.

Not everyone can be president. There’s no disgrace in running and losing. But running for president, or for anything else for that matter, when there is no chance to alter the campaign, much less win it, looks an awful lot like Harold Stassen pretending to run for president at the age of 85 under a truly awful toupee.



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