Picking Scalia's Successor

Justice Scalia’s death over the weekend has kicked off a huge political fight over whether President Obama should (or has the right!) to name his successor. The argument against his doing so appears to be the idea that a President should not appoint a Supreme Court justice this close to an election where his name is not on the ballot. Better to let the “will of the people” be heard and allow the next President to make the pick. On the other hand, Obama has 11 months left in office, Supreme Court nominees move, on average, in about 75 days and even contentious appointees, such as Clarence Thomas, were announced, vetted, and confirmed in less than 4 months. 

The Republican talking point about the unprecedented nature of having a President appoint a new Justice this close to an election is simply not true. This is a very rare situation, and there is little precedent, but what does exist weighs against the GOP’s point of view. Anthony Kennedy was confirmed in February 1988, Justices Powell and Rehnquist got through in early 1972 (when Nixon was up for re-election, but without guarantee of winning), and Eisenhower put through three Justices as recess appointments in 1956. The only recent election year nominee who did not get through was Abe Fortas, who was also under criminal investigation at the time of LBJ’s attempt to elevate him to Chief Justice in 1968. 

What this is really about is the Republicans’ fear of losing their decades-long majority on the Court. And this is understandable. After all, the Court is the final arbiter of the most important Constitutional and statutory questions our country struggles with - from Bush v. Gore to Obamacare, same sex marriage to immigration policy, the modern Court has played a massive role in our country’s fortunes. From the 1930s well into the 1980s, the Court leaned left and even as Republican Presidents made the overwhelming majority of picks in modern times (the Democrats went from 1967 until 1993 without one), the dam did not fully break until the early 1990s and since then, a body of law has been erected on everything from arcane issues like employment mediation clauses and Tenth Amendment states rights to more familiar questions of voting rights and affirmative action that have benefited the conservative view of the law. Republicans will not willingly let that go. 

While replacing a jurist with one kind of legal philosophy with one who has a different one may seem novel, it was not always so. Thurgood Marshall, arguably one of the most liberal Justices of the 20th Century, was replaced by Clarence Thomas, one of the most conservative Justices of any time. Hugo Black, a lion of the New Deal, was replaced by corporate lawyer Lewis Powell, and on and on. That is just the way the quirks and vagaries of death and retirement work. On Election Night 2000, Justice Sandra Day O’Connor famously bemoaned the fact she would have to stay on the Court when it appeared Gore was going to win because she would not allow her seat to be filled by a Democratic President, so the idea that the Court, or its members, is not “political” is nonsense.

The President is well within his rights to name a new Justice and nothing in the Constitution stops him from doing so. When he won re-election in 2012, it did not come with an expiration date on his ability to appoint judges to the federal bench. The shameful display of blind obstruction by Senator McConnell and Republicans running for President should be called out as such. If the Senate wants to take up the President’s nominee and vote him or her down, they have every right to do so, but to set a precedent that no nominee of an opposing party will be heard solely for political gain should not stand. 

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Obamacare Is Working ... Pass It On

Ever since Barack Obama made universal health insurance a defining feature of his first term in office, the Republican Party has engaged in a relentless campaign to destroy what we now refer to as “Obamacare.” During the bill’s movement through Congress, they threw up every legislative obstacle, ginned up protests and rowdy town halls, and attempted to sow fear with ominous warnings of death panels and government bureaucrats coming to pull the plug on granny. Once the law passed, immediate legal challenges cropped up attempting to stop implementation of the law, questioning its constitutionality, and otherwise gumming up the arteries of the legal system in a Hail Mary attempt to stop millions of people from gaining health insurance. Just this week, Congress held its 62^nd vote to repeal Obamacare, finally getting its symbolic victory so that the President can stamp “VETO” when it lands in his inbox. 

It was an odd and discomfiting experience, what with the fact that the law was modeled on an idea originally proposed by the Heritage Foundation and promised to hand health insurers millions of new customers all while maintaining our inefficient, privately-run system for health care delivery in the country. Regardless, weeks and weeks of coverage were provided on everything from a glitchy website to supposed insurance death sprials to claims that the new law would destroy jobs. All reported breathlessly by a media more than happy to ape Republican talking points without ever digging into their veracity. Of course, none of these things occurred, not that you would have noticed because the media had already moved on without bothering to issue corrections. Chuck Todd demanded an apology from President Obama when healthcare.gov was not working, but never proferred a mea culpa of his own once the program was up and running smoothly, helping millions find health insurance.

Comes now an editorial in the Washington Post that examines the three-legged stool of measuring Obamacare’s success: enrollment, cost control, and employment. On all three scores, the Affordable Care Act has delivered – big time. 

Enrollment: Before the Affordable Care Act passed, an estimated 18.5 percent of the adult population in America under the age of 65 was without health insurance. In 2015, that number dropped to 10.5 percent, a reduction of about 45 percent. As the editorial notes, that percentage would be even lower if all 50 states, instead of just 30, had expanded Medicaid coverage under the ACA. It is worth noting that if all 50 states had expanded Medicaid, the roughly 9 percent of American adults under 65 without health insurance is in line with pre-ACA estimates provided by the Congressional Budget Office. 

Cost Control: Here we have two points to consider. The first is whether the ACA did anything to rein in insurance rates that used to go up considerably year-to-year; the second is what impact the Medicare cost control measures included in the ACA did to reduce costs in that program. On both counts, the ACA has succeeded. Prior to Obamacare’s passage, it was estimated that health care expenditure rates would increase by 5.5 percent in 2013 and 7 percent in 2018. In reality, expenditures only increased 3.6 percent in 2013 and are now only estimated to go up by 5.3 percent in 2018 – huge cost savings. Similarly, the rise in premium rates and medical costs since the passage of the ACA have been well below what they were in the decade prior to its passage and the actual costs are lower than what were estimated by the CBO when the law passed. 

On the Medicare front, the cost savings should make any green eyeshade deficit hawk swoon. In 2009, the CBO expected the government to spend $723 billion on Medicare in 2015. The actual amount? $634 billion - $90 billion less than predicted. Extrapolate those savings out over a decade and you have “saved” almost $1 trillion. Not too shabby. 

So, the Affordable Care Act has cut the number of uninsured by nearly half, cost less than predicted, and saved Medicare tens of billions of dollars. But what about jobs? Republicans kept telling us that Obamacare would be a jobs killer. Not so. The past two years have been gang busters for employment. The jobless rate is now at just 5% and the economy has created millions of new, mostly full-time jobs in the process. 

That the good news is largely unreported is unsurprising. Humdrum stories of government functioning as intended (and even a little better) are not nearly as interesting as whatever insult Donald Trump has lobbed at an opponent today, but to the people who have benefitted from the Affordable Care Act, I suspect this is, as Vice President Biden said, a big fucking deal.

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Deficits Do Not Matter

Before our economy blew up in 2008 and before George W. Bush invaded Iraq under false pretenses, a guy named Paul O’Neill, who you might remember as Bush’s first Treasury Secretary, was shut down by Vice President Cheney when O’Neill attempted to throw cold water on another round of tax cuts the Bushies were plotting for 2003. According to O’Neill, Cheney brusquely observed that “Reagan taught us deficits don’t matter.” The tax cuts got enacted and O’Neill was shitcanned shortly after his face-to-face with Cheney. 

But a funny thing happens any time a Democrat is handed the keys to 1600 Pennsylvania Avenue. Suddenly, those profligate Republicans who gladly starve the government of actual money and borrow it instead, become very concerned about budget deficits and debt. It happened when Bill Clinton was President and came back with even greater force once Barack Obama took office. 

Once Republicans took over the House, and continuing when they assumed power in the Senate, any time Obama wanted to do something like extend unemployment insurance to people who were out of work because of the crippling effect of the Great Recession, there was a demand for a so-called “offset” - a dollar for dollar removal of funds from place A to fund priority B. It got so bad that emergency funding for New Jersey and New York after Superstorm Sandy was held up for weeks while Congress quibbled over the small details. That tens of thousands suffered needlessly seemed of no moment. Of course, none of this was required when George W. Bush was spending hundreds of billions in Iraq, Medicare was expanded to provide a prescription drug benefit, or when tax cuts were enacted in 2001 and 2003 that drained the Treasury of needed money just as we were embarking on that grave error of an invasion in the Middle East.

There were few voices louder in demanding austerity and cuts to social programs, while simultaneously cutting taxes even more than Paul Ryan. While his economic view was roundly panned when he was made Mitt Romney’s Vice Presidential running mate in 2012, Ryan never gave up the ghost. Now that he has risen to the third-most powerful office in the land, you would think a journalist such as Chuck Todd would devote a significant portion of time when interviewing now-Speaker Ryan about the recently enacted federal budget and a companion bill that cut taxes by nearly $700 billion over ten years. Yes, you read that right, SEVEN HUNDRED BILLION DOLLARS - but you would be wrong. Here is their entire exchange:

What does this even MEAN? “by keeping taxes where they are that means we’re keeping them where they are.” Yes, yes you are, sir. “Not raising taxes is not cutting taxes.” WHAT? This is the same guy who helped block a $9.7 billion unemployment extension in 2014 because it did not have offsets and the same guy who voted against the emergency relief bill after Superstorm Sandy, but is totally fine with handing almost $700 billion in tax cuts, mostly to corporations and businesses, without cuts elsewhere to make up the difference. No mention of how this will require more borrowing and increase the deficit over time. No questioning of why it is suddenly okay to increase the deficit when it was supposedly such a huge problem less than five years ago. Nope. Nada. Nothing. 

Unsurprisingly, this steaming pile of horse manure got no follow-up from the guy who hosts the top rated Sunday morning talk show in America. The media literally spent months not too long ago obsessing over the need for a “grand bargain” that would rein in the supposedly swollen deficit that risked destroying the nation. Of course, as the budget deficit has receded, less and less time has been spent reporting on it and even less interest in calling out shameless politicians who are happy to stick it to people without jobs or a home so long as the bill being signed has a whiff of bipartisanship and a novelty beard attached to it. 

To recap, Chuck Todd asked a whole ONE question about this apparent hypocrisy, Paul Ryan gave a word salad answer that literally made no sense, and Chuck Todd moved on. So, the next time Republicans refuse to pay for something or claim we cannot afford it, do not expect Chuck Todd, or anyone else in the Beltway media to question it. 

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Fighting ISIS

For much of the last decade, Tom Friedman has been an object of derision outside the comfortable bubble of official Washington. From his blind allegiance to the Bush Administration’s decision to invade Iraq to his habit of predicting that any six month period thereafter would be crucial in determining the fate of our folly [1], Mr. Friedman’s judgment has been brought into question, but the man has reported from and about the Middle East for more than thirty years. Indeed, his seminal book From Beirut to Jerusalem still stands as one of the single best encapsulations of the complex politics of that region, so when he talks, people listen.

As national attention is consumed again with what to do about terrorism, something Friedman wrote in a column earlier this week bears noting:

For whatever ridicule “the Mustache” receives for his sometimes facile explanations of complicated issues, this observation should be printed out and tacked to the wall of any politician purporting to say there is an answer, easy or otherwise, to defeating ISIS.

Consider some of the ideas being bandied about and how easily their limitations are exposed. Most Republicans are calling for a grand international coalition harkening back to the days of George H.W. Bush and the First Gulf War as the model for what American leadership can do. But that metaphor is deeply flawed and not just for the reasons articulated in Friedman’s article. 

In 1990, when Saddam Hussein invaded Kuwait, our most important coalition partner in the region, Saudi Arabia, was highly motivated to cooperate because they feared invasion by Iraq’s superior, well trained, and experienced military. Iran, on the other hand, was weak, licking its wounds from an eight-year war with Iraq. The Berlin Wall fell less than a year before Saddam’s invasion and the Soviet Union was in the process of collapsing while simultaneously trying to build better relations with the West. China, conversely, was isolated internationally after its crackdown on democratic protests in Tiananmen Square in June 1989. In 2015, Russia is feeling its oats, China is ascendent on the global stage, and Iran is emerging back into the community of nations thanks to its nuclear deal with the United States.

What about Donald Trump’s idea to “bomb the shit” out of ISIS. Sounds good, I mean who doesn’t like bombing the shit out of somebody? The only problem, well, problems, are that (1) ISIS is not like the Nazis, with large divisions deployed over a field of battle for the aforementioned bombing; (2) ISIS fighters can blend into civilian populations, thus increasing the chances of collateral damage (i.e., dead innocent people, which tends to anger the locals); and (3) you cannot bomb an ideology out of existence - just ask the Israelis, who have been fighting with the Palestinians since before the state of Israel was declared or the countries that still cling to communism. [2]

So if a coalition will not be an easy lift and we cannot simply carpet bomb ISIS, what about that old standby “boots on the ground?” Right. We are kind of in this mess because some guy with an Oedipal complex decided to invade Iraq in the first place. Our current President has rightly observed that we could deploy thousands of troops to root out ISIS in places like Raqqa, but the question no one has a good answer for is “then what?” The same complications Friedman identified in his column would still apply - the competing interests, conflicting agendas, and most importantly, the total lack of credible political figures on the ground to make something sustainable long-term (just look at the mess in Iraq or the faltering “democracy” in Afghanistan) would still be there. Moreover, unlike the First Gulf War, where a basic status quo ante resulted from Saddam Hussein’s defeat, the heavy lifting of stabilizing and remaking Syria, reconsidering Iraq’s political structure and who should play what role in those decisions, would require a level of diplomacy and commitment our nation has expressed little passion for and the people of that region seem uninterested in adopting. 

Ultimately, much of what passes for policy discussion in our nation assumes that we know what is best for others and that they will support our beliefs because hey, America. But the calls for more passion from the President, more boots on the ground, or more bombing raids belies a simple fact - some problems are not ours to solve.

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END NOTES

1. Friedman’s reliance on this trope was dubbed a “Friedman Unit” by the blogger Duncan Black (a/k/a “Atrios”). https://en.wikipedia.org/wiki/Friedman_Unit

2. Of course, getting rid of one ideology does not guarantee anything. The Soviet Union dissolved but it was simply replaced with a mixture of dictatorship and an oligarchy that has left most Russians no better off than they were under communist rule. 

Congress Takes A Vacation

With news that the White House and Congressional leaders have worked out a deal that will raise the debt limit through March 2017, fund the federal government and wrap other important matters like the highway bill into a massive legislative burrito, the passage of any additional, meaningful legislation before the President leaves office in January 2017 has come to an end.

This is quite convenient for incoming Speaker of the House Paul Ryan. He need not sully himself with the messy details of governing or horse trading with the so-called Freedom Caucus over threats to default on our debt or other silliness. He can focus on his primary interests, which appear to be convincing the country that Social Security and Medicare need to be some combination of slashed and privatized while ensuring the wealthiest Americans pay as little in taxes as humanly possible.

More generally, this gives Congress the freedom to do fuck all before Election Day 2016, which I would guess suits the 435 members of the House and 34 Senators who are up for re-election just fine. Without the need to do the basic blocking and tackling of legislating, they are free to raise money and campaign about how shitty their opponents are without fear of having to do any work. In the Senate, any notion of basic governing, like voting on Obama appointees to the federal judiciary or a random Cabinet Secretary (looking at you, soon-to-be Acting Secretary of Education John King, Jr.) are already out the window and with Republicans nursing a small majority that they desperately want to hold on to so they can either ram through a new Republican President’s agenda or get to the business of blocking anything a new Democratic President might do.

This also works nicely for the media. After all, why bother having reporters on Capitol Hill when they can be disbursed to cover the antics of Donald Trump, Ben Carson, and the rest of the crew on the Republican side or hound Hillary Clinton while she waltzes to the Democratic nomination. Campaigns are far more compelling than dreary legislative sausage making or Committee hearings (oh right, we had one of those recently and after drumming up anticipation for months, the media gave a “move along, nothing to see here” sign when Trey Gowdy deteriorated into a puddle of sweat).

I suppose we should not get too upset about this. After all, it is nice that there will be people to inspect our food, investigate criminal activity, and allow us access to national parks, but one wonders whether a bit more should be expected from people making $174,000 a year and who are provided with lifetime health benefits after serving 5 years in office. Of course, since Congress is only in session for about 135 days each year, passing a budget and ensuring that the bills get paid may be the bare minimum of what it can do – the equivalent of getting a D minus grade on an exam in a class you are taking pass/fail. Hoping that Congress would address larger societal concerns like gun safety, climate change, income inequality, or the minimum wage, or would keep the judiciary properly staffed with judges and Cabinet agencies helmed by people who receive Senate confirmation seems to be more than we should expect anymore.

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The Curious Case of the Disappearing Deficit

Buried on page A21 of Friday's New York Times was news that our budget deficit for the fiscal year that ended on September 30th was $439 billion - $44 billion less than the prior year, almost $1 trillion less than its peak during the Great Recession, and a mere 2.5% of Gross Domestic Product (GDP). 

That you may not be aware of this fact is unsurprising. If the "paper of record" deems this story inconsequential, do not hold your breath that the nightly news, the Sunday chat shows, or anyone else in the media will do anything other than make passing reference to this fact. And that too says something. It was not so long ago that the media was obsessed with the budget deficit, egged on by Republicans who pulled out Talking Points 101 from their playbook about the need to slash Social Security and Medicare or fear becoming a beggar nation like Greece. There was breathless coverage of the tick-tock of "grand bargain" negotiations between the President and John Boehner and one of DC's favorite creations, the blue ribbon commission, was formed to provide a blueprint for long-term deficit reduction.

But a funny thing happened on the way to no one remembering Simpson-Bowles and opting against trimming earned benefits like Social Security or Medicare. The budget deficit is no longer a problem. Indeed, not only is the total amount less than what it was before the Great Recession, but because our economy is larger, it is also even less as a share of our GDP. Indeed, at 2.5% of GDP, our current deficit is less than the modern historical average and a half-percent below what economists think appropriate for sound fiscal policy. 

Of course, we have seen this movie before. When Bill Clinton inherited a massive budget deficit after 12 years of runaway deficit spending by Reagan and Bush, he passed a tax increase on the wealthy, reined in government spending, and the economic boom resulted in a flood of tax receipts that left a $236 billion surplus when he left office. Barack Obama and the Democrats passed the American Recovery and Reinvestment Act and the Affordable Care Act, invested in research and development, saw unemployment plummet, and passed a teensy-weensy tax hike on the top 1%. The reductions in health care spending, the increase in tax receipts from an improving economy (and stock market), and marginal cuts to federal spending have all helped drop the deficit by almost 75 percent from its 2009 high. 

Why the Beltway media continues to fall for the Republican trope that they are the fiscally prudent party while the Democrats are shameless spendthrifts is beyond me. We now have 35 years and five Presidents of proof that Republican Presidents spend like teenagers with their parents' credit card and leave it to Democratic Presidents to pay the bill. 

But the ho-hum, Obama-cut-one-trillion-from-the-deficit shoulder shrug emoji from the Beltway media is really disappointing.

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Media Fail: Obama "Diversity Problem" Edition

Back in December, the media was up in arms about a photograph taken in the White House of the President with a clutch of advisors. [1] Ordinarily, such a photo would be unexceptional, but because there were no women in the picture (the leg of longtime female advisor Valerie Jarrett was the closest the photo came to revealing a female figure) and the natural transition of first term Cabinet members seemed to include a lot of women and minority leaders with some of their replacements either unselected or being white men; suddenly, the President had a "diversity" problem. [2]

The story had a few days life and then, the media, as is their wont, moved on - the fiscal cliff, Sandy Hook, the Inauguration and on and on caused this story to fall into the memory hole of faux outrage and opprobrium quickly forgotten. Funny thing though. The story ended up being complete and utter bullshit, but few journalists circled back to follow up or admit their reporting was lazy and bogus. 

Since this tempest in a teapot sprang to life, the President has nominated women to lead the Departments of Commerce (Penny Pritzker) and Interior (Sally Jewell), appointed the first woman to lead the Office of Management and Budget (Sylvia Matthews-Burwell), named a woman as his National Security Advisor (Susan Rice), appointed a woman to replace Ms. Rice as U.N. Ambassador (Samantha Power) and picked a woman to lead the Environmental Protection Agency (Gina McCarthy). On top of these cabinet appointments, the President just nominated two women (Patricia Millett and Nina Pillard) to serve on the highly influential D.C. Circuit Court of Appeals and two others (Patty Shwartz and Jane Louise Kelly) were recently confirmed to appellate court seats on the 3rd and 8th Circuits, respectively. 

In addition to these selections, the President selected a Latino male to lead the Department of Labor (Tom Perez), an African-American male to lead the Department of Transportation (Anthony Foxx) and appointed a Republican to lead the Department of Defense (Chuck Hagel). At the same time the President selected Ms. Millett and Ms. Pillars to serve on the D.C. Circuit, he also tapped Robert Wilkins, an African-American, to serve as well and if they are confirmed, they will join that court's first Indian-American jurist, Sri Srinivasan, who, incidentally, cut his teeth in government serving in the George W. Bush Justice Department. 

If you are scoring at home, that's a whole heaping helping of "diversity" that the media has largely ignored. Worse than failing to acknowledge its failure, few journalists, now that Obama has made these selections, have focused on the unprecedented level of obstruction some have seen in the U.S. Senate. Ms. McCarthy was sent a questionnaire by Senator David Vitter (yes, THAT Senator Vitter. Google his name along with the word "prostitute" if you need to learn more about him) that asked her to respond to nearly 1,100 queries. [3] Hagel was filibustered (the first time that ever happened to a DoD nominee) and Susan Rice's name was smeared in the wake of an attack on our consulate in Benghazi for appearing on talk shows and echoing talking points provided to her about something she had nothing to do with. The appropriateness of the President selecting all three D.C. Circuit nominees has been questioned by Republicans, with some threatening to block their appointments [4] and a similar threat has been levied against Mr. Perez. [5] 

That the collective media reaction to all of the obstruction has largely been a collective yawn is to be expected, GOP obstruction is so de rigueur at this point that few bigfoot media types spill any ink focusing on it, but it would at least be nice if they admitted the fallaciousness of their reporting on a lack of diversity in Obama's second term. Of course, to do so would require that they admit fault, so I am not holding my breath for a mea culpa. 

END NOTES

1.http://www.nytimes.com/2013/01/09/us/politics/under-obama-a-skew-toward-male-appointees.html?_r=0

2. Representative examples include: http://www.cbsnews.com/8301-250_162-57563186/obama-shuffles-cabinet-but-with-no-female-nominees/,http://thecaucus.blogs.nytimes.com/2012/12/11/in-remaking-his-cabinet-obama-has-an-opportunity-to-break-barriers/,http://www.politico.com/politico44/2013/01/white-house-defends-diversity-153637.html. Suffice to say, one could go on and on thanks to the magic of the Internet. 

3.  http://www.washingtonpost.com/blogs/the-fix/wp/2013/05/29/are-republicans-winning-a-pyrrhic-victory-at-the-epa/

4.   http://tpmdc.talkingpointsmemo.com/2013/06/obama-dc-circuit-nominees-filibuster-reform.php

5.  http://www.politico.com/story/2013/05/ex-obama-aide-perez-filibuster-will-hurt-gop-92006.html