New threat to constitutional tradition

The furor over whether President Obama should be allowed to replace Supreme Court Justice Antonin Scalia looks like yet another case of today’s partisanship overriding the unwritten understandings that have made government work.

Should Democrat Obama leave the appointment to his successor taking office in 11 months? Should the Senate, controlled by the Republicans, refuse to act on any nomination, forcing the decision into next year?

Donald Trump expressed the view of the GOP candidates when he said the Republican policy should be, “Delay, delay, delay.”

A lot of ink has already been spilt to show that history points toward an early presidential nomination and confirmation. But that’s just the point. In recent years, bitter partisanship has reversed the constitutional practices that have allowed government to function.

Though there are many court confirmations that support the history, one embodies almost all the elements of the current clash.

In October 1956, a month before the presidential election and just as the Supreme Court began its annual session, one justice resigned. The Senate was not in session. GOP President Dwight Eisenhower made an immediate, recess appointment. That meant William Brennan could take his place on the court without confirmation.

The next year, the Democratic-controlled Senate voted on the nomination, allowing Brennan to remain on the Court. He was easily confirmed by a voice vote of the Senate.

Eisenhower was in the closing days of the presidential campaign when he made the recess appointment, far stronger than a nomination, because it allowed Brennan immediately to join the Court. The Democrats, the Senate majority, did not force the president to delay.

A president, having won a national election to a four-year term, was considered to be entitled to select Supreme Court justices who agreed with his political views. Consistent with this understanding, Scalia, a strong conservative later appointed by Republican President Ronald Reagan, had been confirmed by a vote of 98-0, meaning the Democrats also approved.

The current issue results largely from the partisanship affecting how the Constitution functions. It has changed the filibuster and undermined the president’s power of appointment.

The filibuster, historically used rarely for the sole purpose of blocking civil rights legislation, is now used routinely, meaning the Senate acts on bills and appointments only when 60 senators agree.

As a result, a party with 41 senators could prevent any judicial nomination getting to a vote. Republican senators used the filibuster to block Obama’s court appointments. In reaction, the Democrats finally deployed the so-called “nuclear option” and eliminated the 60-vote requirement for federal judges, except for the Supreme Court. The Republicans were furious.

The GOP has stripped presidents of the ability to make appointments to office when the Senate is in recess, as Eisenhower did, by finding ways to making it seem the Senate was in session continuously, even when it is not. Scalia and his court allies approved the move.

The reason for having the president hold off is that his Supreme Court appointee is likely to remain in his or her lifetime job long after Obama has left office. That’s not unusual, but a president in his last year should no longer control the future, opponents say.

If Republicans believe they will capture the presidency, they could want the choice left open for more than year including the approval process, increasing the likelihood of replacing conservative Scalia with another conservative. This plan could backfire if the GOP wins the presidency but loses control of the Senate.

By contrast, Democrats want their president to do the constitutional job for which he was elected, even if that means risking disapproval by the GOP Senate. Either the Republicans accept a reasonable nomination or they might face the political consequences of delay. Win or lose, the Democrats could gain.

Blocking a Scalia successor might happen at the cost of allowing this year some Supreme Court decisions, strongly opposed by conservatives. The conservative wing of the Court is depleted by Scalia’s death, and the result could be some more liberal results on cases relating to immigration, public sector unions, abortion and health care.

The combination of possibly unfavorable decisions, negative voter reaction in this year’s Senate elections and Obama’s firm intention to make a nomination seems to be changing some Republicans’ minds.

Perhaps political reality may block, for the moment at least, the continued dismantling of the understandings that allow constitutional government to function.

The Constitution cannot deal with all the issues that arise in applying it. Without agreement on using historical practices that have worked, long-term deadlock is inevitable.

The 2016 Campaign – the view in February

Nobody faintly interested in politics can ignore the campaigns.  But nobody really knows much, leaving it to a largely inexperienced group of television pundits to state their opinions as fact.  And everybody relies too heavily on polls.

So, for what it’s worth, here are my updated thoughts on the campaigns as they stand in mid-February.

Donald Trump.  His popularity is based on his style and his clear opposition to business as usual.  Amazingly, there is some substance to his ideas, occasionally on foreign policy, but his racism and free-swinging attacks turn many voters off.  He probably can get no more than 40 percent of all Republicans.  Not enough to win.

Ted Cruz. His main appeal is that he is not Trump and is a religious person.  But he is not a compromiser and has no friends in the Senate because of his destructive approach.  He does not offer enough of a viable alternative to win.

John Kasich, Jeb Bush, Marco Rubio.  One of these should emerge as the mainstream GOP alternative to Trump and, unlike Cruz, at least two of them really would be different.  Kasich, the Ohio governor, is a conservative by conviction and can still be pragmatic.  Appeals to Democrats.  Bush, the former Florida governor, seems to be an opportunistic conservative who does not project leadership qualities.  Rubio is a conservative trying to pass himself off as mainstream.  He also obviously lacks experience.

Could come down to Trump v. Kasich or Bush.  Trump loses because he cannot win the general election.

Hillary Clinton.  The most experienced person in the field, but acts as if she is privileged and is thus somewhat exempt from full-scale honesty.  Not really a modern liberal, so probably could work with GOP.  Friendly to big money interests.  Probably would turn out to produce results like Obama and her husband.

Bernie Sanders.  The most authentic candidate and holds the most progressive views.  He favors big change, which others say he could not produce or pay for.  If he won, his victory alone could provide at least some momentum toward changes he proposes.  Appeals to young.  If enough Democrats share his views on big money, he could win, but that’s not likely.

Somebody else.  If Sanders defeats Clinton or comes close in races she should win, the Democrats could turn to an alternative.  Vice President Biden, Secretary of State Kerry, California Gov. Brown come to mind.  All old men.

Likely to come down to Clinton, a pragmatic but not popular choice.

The main event: Clinton facing Bush or Kasich.  The country saved.

U.S. House of Representatives.  Likely to remain Republican thanks to gerrymandered districts dating from 2010 state elections.  But margin likely to be reduced if the Democratic presidential candidate does well or wins.  There are enough close seats to allow the Democrats to close the gap.  Maine’s second district is a good example.

U.S. Senate.  Could swing to Democrats with more GOP-held seats up for grabs.  This would be influenced by presidential race and lack of the ability to gerrymander.  Democrats need a strong coordinated national campaign, which would mean sticking with Sanders if he were nominee.

U.S. Supreme Court.  Beyond Scalia, almost certainly, there will be appointments to be made in the next four years.  Much depends on the presidential and Senate elections to determine the Court’s approach to the domination of campaign finance by big money, attempts to suppress voting, health care and immigration.  This was the hidden element of the 2016 elections, but now could be a focal point.

All national elections are important. This year’s could mark a transition, but to what?  Pragmatism or deeper partisan war?

As for Maine, Republican Gov. LePage helps Democrats gain control of the Senate and hold the House, because he worries people, who will want to limit his power.

Your thoughts?

It’s Washington’s Birthday, not Presidents’ Day

On Monday, we will celebrate Washington's Birthday.

Not Presidents’ Day, but Washington's Birthday, the official U.S.  government designation of the day. This is my annual recognition of Washington.

To remember Abraham Lincoln and other presidents, some outright failures, the holiday honoring Washington has been absorbed by the commercial “Presidents’ Day.” But we should remember our country’s good fortune to have been led by this exceptional man.

During the war for independence, Washington had the heavy responsibility of unifying the United States. Between 1776 and 1789, the United States was composed of a collection of independent and sovereign states.

Washington faced the task of bringing and holding the country together. His experience as the only truly national figure during the war, dependent on voluntary state contributions of money and soldiers, taught him that a strong national government was essential.

Washington was an even better politician than a general. His strengths were his unwavering commitment to the idea of the United States and to civilian control of the military.

When he assumed the presidency, he understood that almost everything he did would set a precedent for history. Each step – from how he was addressed to the creation of a functioning government to his relationship with Congress – required careful thought and preparation and showed deep respect for the popular will. The long-lasting results are a testament to his wisdom.

But there was strong opposition from those who worried that the national government would override states’ rights and individual freedoms. Washington accepted the Bill of Rights as an essential part of the deal to make a new country.

Washington, a southern slave owner, agonized over slavery. He recognized that the two parts of the country had deep differences about its future, and the country might break apart. If it did, a friend reported in 1795, "he had made up his mind to remove and be of the northern."

He believed that slavery would end as the nation's economy developed, though he was overly optimistic about the timing and ease of the transition. He recognized that the future lay in the development of "manufactures" produced by wage labor, as was beginning to happen in the North.

Thus, 70 years before the Lincoln's defense of the Union in the Civil War and his willingness to compromise on slavery, Washington used his national standing to hold the country together, even facing opposition from Virginia, his home state. His will provided for his slaves to be freed after his death, and his widow freed his and hers.

Thomas Jefferson bitterly opposed him about how to deal with the rest of the world. The president subscribed to a view later formulated by a British statesman: "Nations have no permanent friends or allies, they only have permanent interests."

For Washington, it made sense to sign a treaty with England rather than France, America's wartime ally, then in the throes of a bloody revolution. Jefferson and his allies disagreed, later launching the disastrous War of 1812 against the British.

He was disappointed at the development of political parties, and he finally split completely with Jefferson, who had formed an opposition party.

Washington had a deep religious belief. While some other Founding Fathers were deists, believing that God's role was limited to creating the universe, Washington was a practicing Christian who often prayed, usually privately.

Yet he did not believe that the United States was a Christian nation, writing, "All possess alike liberty of conscience and immunities of citizenship." He opposed religious "toleration," saying the term implied that "it was by the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights."

Because of Washington's willingness to establish a working relationship with the British, Jefferson’s allies charged that he wanted to create something like a hereditary monarchy in the United States. Yet they could not find any evidence against him, and he had no child who might succeed him.

Washington might easily have taken more power, but he carefully avoided making his position regal and always worked closely with Congress.

He resigned as general and declined to serve more than two terms as president. When Britain’s King George III, America’s old enemy, was told that Washington would walk away from high office, he said, “If he does that, he will be the greatest man in the world.”

Washington has become a symbolic figure, causing us to forget him as a real person. He was a general, a president, a statesman and, above all, a great man. We should not forget that man.

The problem with impeachment: A story from Maine

Maine just experienced the nation’s latest try at impeaching the executive head of government. The matter went nowhere, because the move looked too much like politics.

Federal and state governments have shown just how hard it is to remove a chief executive. Few governors have been impeached and fewer yet removed from office.

The main basis for raising the question about Republican Gov. Paul LePage was his action to force the Good Will-Hinckley School in Fairfield to revoke its appointment of House Speaker Mark Eves, a Democrat, as its head.

While Eves has brought a civil suit against LePage, it is not clear that the governor’s threat to withhold school funding if Eves got the job was a violation of the governor’s oath of office. His action looked like a case of old-style politics.

The two most celebrated impeachments, both of presidents, were obviously more political than based on illegal actions in the performance of their duties.

In 1868, Pres. Andrew Johnson was impeached. He came within one vote of being convicted for violating an obviously unconstitutional law that would have prevented him from removing members of his own cabinet.

In 1998, Pres. Bill Clinton was impeached, but not convicted, for lying in a civil suit involving his sexual activities. The alleged offense did not relate to his official actions.

In both cases, Maine senators, in the opposition party to the presidents, nonetheless voted against conviction. They saw the basis for impeachment as weak or political, not enough to justify removal from office.

Similarly, LePage, who is held in low esteem by many in the Legislature, would have been impeached on what seemed a matter of pure politics. Because this would have been the first impeachment of a Maine governor, legislators were understandably cautious about setting a precedent.

These cases reveal how difficult it is to distinguish between a sound reason to remove a public official from office and plain politics. A few officials, including governors, have been stripped of office for taking bribes or for alcoholism that prevented them from doing their jobs. But some have been ousted as the result of political opposition.

Constitutions and laws do not define the offenses justifying removal. That can make any decision to impeach essentially a partisan move. If the opposition lacks the votes to convict and remove, it may not take the political risk connected with impeachment.

In the LePage case, Republican legislators were unlikely to vote against him, ruling out the possibility of conviction. It seemed pointless to push hard for impeachment, and a weak, face-saving motion was all that could be passed.

If Maine law had said the governor could not refuse to spend funds properly appropriated for a narrowly defined purpose, there might have been a case against LePage for threatening to withhold support for the school. But it is unlikely there are laws that strict or narrow anywhere.

Another issue, not fully pursued, related to the issuance of bonds that had passed the Legislature and been approved by Maine voters. While customarily, the governor may choose the timing of issuing bonds to catch better interest rates, that was not the case, because rates were almost zero.

LePage openly announced he was withholding the bonds, not because of the interest rate, but to pressure the Legislature to accept another of his policies. It refused to yield. And the will of the people – the sovereigns of the state – was overruled by the politics of the governor.

All laws in Maine are deemed to have been passed by the people. For voter-approved bond issues, that is not mere theory. If the Legislature focused on the governor’s refusal to issue bonds, it might have provided an interesting test in defining what constitutes an impeachable offense.

Two points arise from the lack of definition of the grounds for impeaching a governor. First, the Legislature should not simply walk away from the question, now the LePage matter is off the table. Either a legislative committee or a special body should be asked to consider possible definitions, however broad, of impeachable offenses.

Otherwise, as the LePage matter illustrated at the state level and the Clinton case showed on the federal level, impeachment, left undefined by constitutions, can be an almost useless provision or just a political ploy.

The other lesson, especially from the bond issue matter, underlines the gap existing between the people and their government. If popular votes on legislative matters may be freely ignored by elected officials, government is neither responsive nor responsible.

Federal courts legislate, public confidence wanes

Federal courts have become a key part of the legislative process. At the same time, polls report falling public confidence in the courts.

When it comes to the U.S. Supreme Court, that's hardly news. Many know that the Court is now composed of four conservatives, four liberals (perhaps calling them non-conservatives would be more accurate) and one swing vote. It often decides partisan issues along predictable political lines.

Less well known is the degree to which lower federal courts are being used for partisan legislative purposes.

Take the recent action by President Obama to extend the definition of gun show sales, making background checks on gun purchasers more likely. He claims he has the right to take this action in implementing a federal law. His opponents say he has exceeded his authority under the Constitution and usurped the powers of Congress, which lacks the votes to block his move.

This kind of dispute increasingly ends up in a federal district court. The court, which may be located anywhere in the U.S., often is in a state where officials oppose the president's action. There is a good chance the judge will be the appointee of a Republican predecessor of Obama.

The Republican opposition that has developed the effective political use of the lower federal courts. In a current case against Obama's actions to limit the deportation of some illegal immigrants, the Republicans have been able to get a Texas court to suspend the Obama policy until the case is fully heard.

The federal district courts have increasingly become the arena for conflicts between the president and his opposition. At the very least, the appeal to court gives the Republicans the ability to delay the application of the president's policy.

Now this approach has become relatively common, it is possible that, if the roles were reversed, the Democrats would do the same thing.

The weakness in the process may be that the states filing the case could have a difficult time showing they actually would be hurt by the president's action. The general rule is that anybody making a complaint has to show real harm, not just an incidental effect. Courts might toss out cases where states cannot show a major effect on their official operations.

The Obama administration has opposed a lawsuit by Nebraska and Oklahoma against Colorado over its law allowing small amounts of marijuana for personal use. They claim its effect would spill over their borders.

But the Justice Department says the effect would be too slight to justify court action. That's true, and that's the same principle that could be used to stop the use of state harassment lawsuits against presidential action.

If the current trend is allowed to continue without limits on the complaints that can be brought against actions either by the federal government or another state, even if they are policy disputes without specific harm to the plaintiff, the courts could become an even more regular part of the legislative process.

That would inevitably harm an already wounded, impartial judiciary. It was once believed that, at least below the Supreme Court level, the president should appoint the most competent lawyers to be judges. But the political affiliation of judges has come to mean a great deal, especially in the expectation they will decide matters previously left to legislators.

With this possibility on mind, U.S. Senate Republicans heavily used the filibuster to block votes on Obama's court nominees. Appointees of Republican presidents controlled most courts.

Finally, the Democrats broke out the so-called “nuclear option” and eliminated the requirement of a two-thirds, super-majority vote before nominations to lower federal courts could even be considered.

That ended the domination of those courts by GOP appointees. Now Democratic appointees are the majority of federal judges.

Even with Republican control of the Senate, Obama has been able to get court appointees confirmed. Rather than trying to force liberals through the process, he has concentrated on appointing people who will add to diversity among judges – women, African Americans, Latinos.

Though the public may be getting used to the partisan spillover into the federal courts, it seems likely that falling public confidence results from a sense that the courts are less like independent umpires and more like active players.

The politicization of many of the federal courts also represents a reduction in their independent role among the three branches of government. That could have dangerous long-term effects.

To save the integrity of the judicial system, it would help if the Supreme Court would set a better example.

Politicians, media stoke fear, ignore facts

Terrorism breeds fear-mongering. So does the presidential campaign.

Instilling fear in voters by attacking government actions, even without providing practical alternatives, seems to be good politics.

Candidates may threaten to seal off the country by immigration bans or walls. They engage in saber-rattling and suggest personal freedoms should be curtailed.

The media sometimes helps spread fear. One excited and exaggerated example of fear-mongering comes from former ABC newsman Ted Koppel in his best seller “Lights Out.” He warns that the American electric power system is so vulnerable to terrorist attack that the entire country could easily be brought to its knees.

He forecasts widespread, long-term outages with people going hungry and freezing in the dark. The country could become a lawless “Mad Max” wasteland. In short, Koppel tries to scare us into action.

During the Cold War, many assumed the almost perfect ability of the Soviet Union to attack a weak America almost unable to defend itself. Now, Koppel does much the same, giving relatively little credit to his country's deterrent capacity or technological strength but attributing much power to the terrorists.

His solutions include increasing government control of utilities, adding restrictions on individual privacy rights, stockpiling survival supplies following the Mormon example, and saving a rural America where people can live off the grid. All of these are either drastic, impossible or unwarranted.

He laments that electric industry restructuring has resulted in hundreds of players – generators, high voltage transmission companies and local distributors. Formerly, only a few large utilities controlled the industry. He fails to recognize that with many independent participants, it is now more difficult for an opponent to bring down the entire system.

And he ignores completely the local, consumer-owned utilities, serving about a fifth of all customers.

He decries the existence of both state and federal jurisdiction over the electric industry. He fails to recognize that vulnerability exists almost entirely in the transmission grid, which is solely under federal jurisdiction.

Koppel sees the industry as being reluctant to take measures mandated by government to protect the system. Presumably, their profit motive outweighs security concerns.

While there may be some truth to this view, the government has not allowed itself to be pushed around as much as he claims. After the 2003 blackout, federal law was adopted to require, rather than encourage, reliability standards. Admittedly, there is a contest between the federal regulatory commission and the industry watchdog, but it is incorrect to imply nothing is happening.

In making his analysis, Koppel seems happy to rely on anybody who has had a high-ranking title in government or electric utilities. He gives no evidence of having spoken with any hands-on grid operator.

He reports that the vulnerability of the electric system results largely from its dependence on electronic technology, which can be hacked from almost anywhere. In fact, it seems reasonable to ask if it will ever be possible to provide complete security.

The problem, ignored by Koppel, is that like so much human activity on the computer, there is not enough back-up. If the grid is taken down by distant saboteurs, he makes it seem like there is no alternative.

The grid operated for decades without computers. Instead, human beings flipped switches or manually started generators. Operators today are reportedly unable to revert to past practices, because their operating manuals have been trashed.

It would be relatively easy and not very costly to bring back the capacity for manual operation. Managers would have be trained and manuals rewritten. The system would not operate nearly as well as its does today, but the desolate future Koppel forecasts would not happen.

He never mentions what the industry calls “distributed generation” – supplying power from small, local sources that can take blocks of customers off the grid. In that way, even urban customers could enjoy the benefits of independence Koppel found in rural Wyoming.

Without regard to the terrorist threat, distributed generation is on the way. It can help reduce the environmental impact of the traditional power system and produce greater efficiency. And it can make good use of small-scale renewable resources.

As much as his book might seem to make it so, the United States is not a pitiful, weak giant. It is moving in the right direction, though it certainly could move faster and more decisively.

Unlike some candidates, Koppel's concerns seem to be sincere, if somewhat misguided. His big failure is how he investigated the story. He reveals clearly that we should be careful about letting fear prevail over facts.

Pundits must now make room for real voters

This is not the beginning of the end. But it is the end of the beginning.

This paraphrase of a statement by British Prime Minister Winston Churchill during the Second World War seems to fit today's American political scene. The 2016 presidential campaign will soon arrive at the moment when speculation giving way to voting.

Neither the Democratic nor the Republican race is settled. The cascading effects of upcoming caucuses and primaries may create surprising political outcomes. After a final flurry of guessing, we soon arrive at the last minute for pure pundits. That includes me, so here's my last shot.

Hillary Clinton has long been thought to have the Democratic nomination locked up. Many women and men think it is past time for the U.S. to have a woman as president. And there is little argument that she has had a great deal of useful experience as First Lady, U.S. senator and Secretary of State.

Sen. Bernie Sanders, despite the self-imposed burden of having labeled himself a socialist, has made the chase for the nomination more of a contest than was expected. The anti-establishment candidate, he seems genuine, compared with a carefully programmed Clinton.

Former Maryland Gov. Martin O'Malley awaits the moment when Clinton stumbles or Sanders defeats her in a primary A traditional Democratic liberal, he may hope that his party turns to him if it begins to doubt Hillary and fear Bernie.

Among the Republicans, Donald Trump and Ted Cruz now fight for the lead, but just a couple of state results could push others to the top. There are a dozen shades of conservatism, with Ohio Gov. John Kasich and possibly former Florida Gov. Jeb Bush available if the GOP wants some moderation.

Political history suggests that parties pick candidates considered to be at ideological extremes when they have only a long shot at election, usually because they face a strong incumbent. For example, take Republican Barry Goldwater in 1964 and Democrat George McGovern in 1972.

But that is not the case in 2016. Nominating Trump or Sanders would not make sense, if a more moderate candidate could more easily win.

Suppose the GOP moved toward nominating Trump. That could encourage mainstream Republicans to consider voting for the Democratic candidate. But many have an ABC attitude – Anybody But Clinton. Could the general election polls swing to Sanders or, more likely, O'Malley?

Like all of the commentary before voting begins, this is pure speculation. Until now, the campaigns have winnowed out a few candidates, but they have not told us much about the possible final result. That has created a field day for pundits. Polls and debates have revealed little.

The almost daily poll results are of doubtful value. There are real questions about whether pollsters draw good samples of the population and if poll respondents are anything like the people who will participate in caucuses and primaries. And they do not forecast how the results of early races will affect later ones.

For example, can Trump remain a front runner in a field with many fewer candidates? Right now, there is no sign that he appeals to half of all Republicans, much less many Democrats or independents.

The debates have been devalued. There have been too many of them, too early and with too many participants. When the GOP encounters have had good audiences, it was because they were more like athletic contests than a serious discussion of differences among the candidates.

The Democratic debates have been relegated to relative darkness, because their organizers had concluded there was really no contest at all. Like the Republicans, the main objective for participants has been to avoid making mistakes or being topped by an opponent's witticism.

Most political analysis has been questionable. Obviously Trump and, to a lesser extent, Sanders have thrown off the so-called experts. In part, that's because the temper of country is difficult to read.

Are the voters fed up with government itself or do they want a stronger government to limit the major role of the wealthy and financial institutions?

Is there a moderate, non-ideological majority that will vote for candidates willing to compromise so that government can make decisions on meeting public needs?

Both parties have their national conventions in July. They will not be brokered, because there are no brokers, people who can deliver blocks of delegates. And even open conventions are unlikely. Nominees should emerge before then.

The only thing we can know for sure is that with the Iowa caucuses on February 1, the end game begins.