Conservative judges not turning out to be partisan

President Trump is making the federal courts conservative.  The effect could last for several decades.

With the flood of his judicial appointments approved by the Senate and capped by the confirmation of Brett Kavanaugh to the Supreme Court, this view is widely accepted and feared by alarmed opponents.  For them, a “conservative” court means judges sustaining Trump’s partisan views.

But there is a problem with this potentially inflated fear.  There is a difference between “conservative” and “partisan.”  This week, Supreme Court Chief Justice John Roberts rebuked Trump for claiming that a judge and an appeals court are partisan.

Last week, two federal courts – U.S. District Courts with judges appointed by Trump and confirmed by Sen. Mitch McConnell’s Republican Senate – showed that the panic may be exaggerated.

A federal judge in Bangor ruled that GOP Rep. Bruce Poliquin had not made the case that ranked choice voting is unconstitutional.  The decision effectively meant that Democrat Jared Golden would take Poliquin’s House seat.  The ruling was grounded in law and was neither partisan nor conservative.

A federal judge in Washington, D.C. ruled that Trump could not simply toss a CNN reporter out of the White House, even if he asked obnoxious questions.  The reporter was entitled to due process before losing his entry badge.  The president could not discriminate among reporters, once newspersons had been given access.

Both judges made their decisions based on the Constitution, not in favor of the president and party who had placed them on the bench.

The concern about a conservative court focuses on a handful of critically important issues that the court has already decided – abortion, same-sex marriage, the Affordable Care Act, and state voter control of congressional redistricting.  Will the new judges reverse these decisions?

A lower federal court, no matter how conservative the judges, cannot reverse a standing Supreme Court decision.  Only the Supreme Court or, in many cases, Congress can do that.

Clearly, a good argument can be made for Congress to legislate and not leave it up to the Supreme Court, as it did with abortion.  But experience shows the Supreme Court, even with an ideological majority one way or the other, can produce surprising decisions.

The Affordable Care Act was not overturned when Roberts voted to approve it, contrary to expectations.  The two Trump appointees to the Supreme Court may not vote as expected or exactly the same.  It is early in their tenure, but their records show they can think for themselves.

Much depends on how a case gets to the federal courts.  In the past, conservative state attorneys-general brought cases attacking Obama policies.  They raised issues that the federal courts were forced to address.

Now, the tables have turned.  Liberal state AGs are launching cases against Trump policies and have begun to achieve success.  In effect, they are forcing federal courts to address their concerns.

The vast majority of cases coming before the federal courts do not lend themselves to a conservative-liberal split.  Some are technical and have limited scope.  But others deal with interpreting the laws, not constitutional questions.

If there is an ongoing ideological split among Supreme Court justices, it may be about the extent of federal powers.  Congress could settle most such questions by making the decisions itself.

Kavanaugh previously served on the same court as Merrick Garland.  President Obama had nominated Garland to the Supreme Court, but McConnell made sure he was denied any hearing by the GOP Senate.  On the same Appeals Court, Kavanaugh and Garland agreed more than 90 percent of the time.

Their agreement showed, above all, that most issues do not rise to the level of ideological controversy.  Republicans used their agreement to show that Kavanaugh was not a dangerous conservative, though McConnell apparently found that Garland was a dangerous liberal.

Blame for the concerns about the ideological split on the Court belongs to McConnell.  For him, judicial confirmations are partisan issues, even if the justices do not see themselves as partisan.  McConnell bears major responsibility for the Senate’s deep political divide.

Trump wants to make sure he pleases conservatives with his judicial appointments.  Whatever his partisan views, he ends up installing qualified judges. 

The Federalist Society, a serious, conservative group, suggested Kavanaugh, who was also found to be “well qualified” by the politically neutral American Bar Association.  Relying on it, Trump has produced more competent judicial nominees than earlier GOP presidents, including Richard Nixon and both Bushes.

Before assuming the worst about the new appointees, critics should probably be as fair-minded as they want judges to be.

Spoilers undermining elections; Maine becomes especially vulnerable

Lewis Carroll, who wrote Alice’s Adventures in Wonderland, thought a lot about elections. 

A mathematician as well as a writer, he disliked plurality elections.  The candidate winning the most votes, but less than a majority, would have been rejected by most voters.  That could happen with three candidates or more.  Carroll, the penname of Charles Dodgson, failed to come up with a good solution.

Plurality elections produce minority winners.  The candidate finishing after the top two may be a “spoiler.”  Without races limited to two candidates, spoilers are inevitable.

A spoiler ruins the smooth running of elections, because that candidate may distort the will of the voters.  Why are there spoilers, people who have no realistic chance of winning but must understand they can affect the outcome?

Some spoilers are shams, and run to support one candidate by drawing votes away from another.  Some run to gain a wider audience for their views, even hoping their showing might lead to a new party.  Some seem to think that lightning will strike, and voters will suddenly rush toward them.

Here’s an example of the spoiler effect.  In 1992, Ross Perot ran for president as an independent, appealing to Republican voters more than to Democrats.  He drew so many votes from President George H.W. Bush in Maine that Democrat Bill Clinton carried the state and Bush, despite his Maine connections, finished third.

In 2000, Ralph Nader probably cost Al Gore the presidential election by siphoning off Gore votes in Florida and Oregon.  A classic spoiler was Eliot Cutler in the 2014 Maine governor’s race, who reneged on his promise to drop out if he trailed. 

This year, Alan Caron, independent candidate for governor, made the same promise and, in a classy move, kept it.  So did the potential spoiler in Arizona’s U.S. Senate contest.

Voters could see the possible impact of spoilers all across the country.  Maine is gaining the national spotlight, because it alone uses ranked choice voting to determine the winner in federal elections. 

Ranked choice voting has been called instant runoff voting, because second choice votes for a first round loser may be instantly reassigned to other candidates.  It lacks the second campaign that accompanies a real runoff.  Depending on your viewpoint, it either enshrines spoilers or neutralizes them.   

Gail Collins, a New York Times columnist, last week told the world about the Maine, writing, “Why didn’t anybody think of this before?”  Second District GOP Rep. Bruce Poliquin, afraid of losing his seat thanks to ranked choice voting, launched a federal court challenge to it. 

The combined effect of Poliquin’s challenge and Collins’ column may bring the system onto the national stage.

In 2011, the U.S. Ninth Circuit Court in San Francisco tipped its hat to Carroll and provided an excellent analysis of plurality, run-offs and ranked choice elections.  Each had defects.  Were ranked choice voting issues great enough to endanger the constitutional rights of voters?

If there were big problems, the Court said it would apply “strict scrutiny,” meaning it would have to order less harmful ways of accomplishing the same purpose.  But if the possible harm was relatively small, the Court need not go that far. 

While not weighing the relative effect of various election systems, the Appeals Court, the highest court yet to consider ranked choice voting, found any harm was small, meaning the new system could be used.  Poliquin’s appeal challenged this conclusion.

The Appeals Court’s impartial analysis of the system was thorough.  This week, the U.S. District Court denied Poliquin’s bid to stop the law.  A final federal court decision, if it sustains earlier findings, could lead to broader national adoption of ranked choice voting.

Ranked choice voting would not eliminate hopeful spoilers.  Unless the requirements for entering the race are raised, it might even encourage them.  This year, a nonresident ran third in the Second District election, needing only 2,000 signatures to get on the ballot.  Meanwhile, the in-district Democrat had to win a costly primary.

Major-party candidates mostly ignore potential spoilers, probably fearful of drawing more attention to them.  Campaigns are so busy bashing one another that they often miss the possible effect of also-rans.

Candidates should campaign more openly on the potential effect of spoilers.  Ignoring them hasn’t worked.  States should make it tougher for potential spoilers to run, because the process is now biased in their favor.  States might also consider adopting runoffs.

Carroll was wise.  He knew elections are not a whimsical wonderland, but a real battleground where the rules of political war can determine winners.  

Dems boost their 2020 outlook, but Trump owns GOP

Whatever else that can be said about the 2018 elections, they are a picnic for pundits.

They can find anything they want in the results.  Trump won or he lost.  There was no “blue wave” or the Democrats scored big gains in the House and governor’s seats.  The president has gained a Democratic House to target in campaign attacks or the Democrats now have the votes to impeach him.

Whether the glass is half-full or half-empty is, as always, a matter of how one views it.  For many voters enough is enough, and they are ready to shift their focus to the holidays, their families and football.

Still, beyond the short-term effects, the elections may have provided some important markers about how politics in America is changing.

If people believed that the 2016 Trump election was a fluke, they have been corrected.  The make-up of the congressional GOP shows that the party belongs to him.  Traditional Republicans have lost control.  His hold on the Senate means he can worry less about moderates like Sen. Susan Collins.

In effect, the Republican Party has become more clearly conservative.  For Trump, it is a matter of “my way or the highway.”  It is time to stop talking about the Trump “base.”  He owns the GOP.

As for the House, Trump can see it as a normal midterm shift away from the party of the president and not as a swift rejection of his brand of politics.  If he is right, it may result from the fact that he never enjoyed majority popular support.

In 2016, he won 2.9 million votes less than Hillary Clinton, but her majority was so concentrated that he picked up the win in electoral votes.  It is possible this year that a popular majority voted for Democratic candidates, and, lacking the electoral vote effect, their party gained the House.

It is certain that Trump is running in 2020.  The question for the GOP is whether an anti-Trumper, like outgoing Ohio Gov. John Kasich or retiring Arizona Sen. Jeff Flake can muster enough support to take a run at him in the Republican primaries.

Beyond the question of whether the elections were a referendum on Trump, they shed more light on how the political world is changing.

The Census classifies all municipalities as urban or non-urban.  The country is becoming more urban, and the election showed that the Democratic-Republican split is becoming even more clearly an urban-rural divide.

In Maine, the First District House contest, easily won by the Democratic incumbent, was much less heated than the Second District battle, where a GOP incumbent was challenged.  Yet it looks like the more urban First will have cast more ballots than were counted in the rural Second.

More women and minorities ran and, it is likely more of them voted, along with added young people.  They tilted toward the Democrats.  As they become an increasing share of the electorate, that could reduce the long-term prospects for the GOP.

The strong runs of an African-American woman for governor in Georgia and a Democrat for the Senate in Texas, both unimaginable a few years ago, are signs of dramatic demographic and political change in the Republican heartland.

While these changes may look promising for Democrats, the future is not guaranteed to belong to them.

The GOP majority in the Senate has increased if for no other reason than most seats in the elections were held by Democrats.  That flips in 2020, when many GOP seats are up.

Trump and the Senate majority have the power to reshape the federal courts during the next two years.  The Democrats cannot stop them.  Their only hope, however unlikely, would be to trade House support for GOP policies for some neutral judicial appointments.

The Democrats must also better define themselves in the face of a clearly Trump GOP.  Will they be seen as the progressive counterforce to Trump or as centrists?

While the Democratic Party has historically been able to accommodate a wide range of political views, the candidate it selects in 2020 will have to send a message on how the party should be seen.  Trump has shown that the candidate defines the party and not the reverse.

As for issues, the economy can be expected to dominate. The boom will end.  The government tax cut stimulus has been financed by debt.  Not only will the economy slow, but the bill will come due.

The pundits say the next election campaign has begun, but so perhaps has the next political era.