This country is facing the extraordinary situation of an election year in which control of all three branches of government is up for grabs. The confluence of a Supreme Court vacancy—a seat that could be the Court’s deciding vote—with presidential and congressional campaigns raises the stakes to an unusual height.
The House is populated mainly by representatives whose seats have been gerrymandered and, barring an avalanche, is unlikely to lose its Republican majority. In the Senate, however, a switch of five seats could put the Democrats back in control—or only four if the Democrats win the presidency, since the vice-president can break ties, including on the vote of who organizes the Senate. It’s possible that the Supreme Court opening that resulted from Justice Antonin Scalia’s death will be filled before the election, but mighty forces are at work to prevent that. The struggle over the vacancy reflects the same collision of forces that have shaped Congress and its dealings with the president for the past seven years, and it could influence the decisions voters make this fall.
Majority Leader Mitch McConnell’s announcement, less than an hour after Scalia’s death became known, that the Senate wouldn’t consider any Supreme Court nomination by President Obama for the rest of his term, was yet another sign of the Republicans’ disrespect for the president. But McConnell was also trying to protect his troops from a major election-year fracas—and perhaps his own position as well. The far right, which dominates the House Republican Conference and is gaining ground in the Senate, insists that the decision about the Court should be made by the next president—anything to prevent President Obama from filling the seat. (These so-called strict constructionists of the Constitution don’t seem to have read it in a while. If the Founders had thought that a Supreme Court Justice should be chosen by popular referendum, by a plebiscite, they would have said so. In fact, they arranged for quite the opposite.)
McConnell, who usually thinks long, had reason to expect strong pressure from the right against allowing Obama to fill this crucial seat in a Court that had often been divided five-four on major issues, with the conservatives in the majority. Republicans have made it a point to oppose every major legislative initiative Obama has made, and on several issues, such as guns, campaign finance, gerrymandering, voting rights, abortion, and deregulation, on which they were stymied, they could count on the Supreme Court to enforce their agenda (hence their fury when Chief Justice John Roberts switched sides to save Obamacare). Obama had succeeded in naming two liberals—Sonia Sotomayor and Elena Kagan—to replace two liberals but the right was damned if it was going to let him fill Scalia’s seat.
The dynamics of the fight over the vacancy will not be unlike fights over legislation, all-out and highly partisan: the far right sets out the most extreme position and threatens more centrist Republicans that, if they don’t go along, a highly conservative figure might challenge them in the primary. Moreover, the partisan collision over filling Scalia’s seat can provide both parties with a handy mechanism for stirring up their base for the election. The Republicans, with twenty-four Senate seats up for reelection—seven of them from states that Obama carried in 2012—could be in a vulnerable position. The Democrats have just ten seats up for reelection and have a shot at regaining control of the Senate. The Supreme Court fight, therefore, is tightly interwoven with the election.
The absolutist position against even considering an Obama nominee was vulnerable to common sense. Since when, it was asked, can a president not exercise his constitutional duties in the fourth year of his term? A few Republican senators—including Chuck Grassley, who heads the Judiciary Committee—sensing that ruling out any Obama nominee wasn’t tenable, suggested that they’d be amenable to hearings. But, as McConnell and his allies understood, hearings would inevitably lead to pressure for a Senate vote. In a press conference last week, Obama himself brought pressure by insisting on his constitutional prerogatives. He also made it clear that he intended to nominate someone who would be difficult for the Republicans to vote against—this suggested a jurist on a lower court who had been confirmed with overwhelming Republican support. Of course it’s also possible that the Republicans will learn in November that the next president will be another Democrat.
Even before Saturday’s Republican primary in South Carolina, it was beginning to sink in among numerous observers that Donald Trump could actually win the Republican nomination. After Trump’s South Carolina victory, with his main rivals—Marco Rubio and Ted Cruz—dividing most of the remaining votes, it became hard to see how he could be stopped. If Trump wins the nomination he will be among the least informed candidates for the presidency in a long time. He blusters his way through the (relatively few) substantive questions put to him in interviews and debates: he knows how to get things done; he has “lots of friends” among the (fill-in-the-blank, be it a nationality, such as Mexicans, or other groups, such as Muslims or members of Congress). And he’s been subjected to little follow-up questioning: so far, to my knowledge, when Trump says, as he has frequently, about his fuzzy health care plan, that we won’t leave people “dying in the streets,” no one has pointed out that those are the people whom Medicaid and emergency rooms are designed to take care of.
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One has the sense that Trump hasn’t made a special effort to bone up on specific issues, that he gets his information from television talk shows and Time. He counts on bluster to propel him. And he adjusts. After the Republican debate preceding the South Carolina primary descended into an out-of-control screaming match, with candidates calling each other liars—John Kasich, who has insisted on a positive campaign, didn’t partake—Trump toned himself down; he also swore off swearing, because it wouldn’t go down well, he was told, with the good people of South Carolina, which has an even higher proportion of Evangelical voters than Iowa. If Trump is the nominee, I wouldn’t be at all surprised if he toned down further, studied up on some issues, and projected an earnestness that would have reporters rhapsodizing about the “New Trump.” What’s astonishing is that someone so intellectually and temperamentally unsuited for the presidency has gotten so close to it.
But first, Trump has to win the nomination. His main rivals have severe disadvantages. Marco Rubio had the discipline (and certainly the ambition) to pick himself up off the mat after his disastrous repetitive debate performance before his fifth-place New Hampshire finish. In South Carolina, Rubio came in second, with the help of South Carolina Governor Nikki Haley (who in this and in her eventual decision to remove the Confederate battle flag from the grounds of the state capitol—that wasn’t her first instinct—was in consonance with the wishes of her party’s hierarchy, which is appalled at the prospect of Trump or Cruz being the nominee) and Senator Tim Scott. Still, Rubio was only .2 percentage points ahead of Ted Cruz, who was third, and his following is said to be wide but not passionate, whereas Cruz’s highly conservative followers (Cruz refers to them—and himself—as “Courageous Conservatives”) believe in Cruz strongly. But so far there haven’t been enough of them to allow the Texas senator to win a state other than Iowa, where his followers were exceptionally well organized.
After Jeb Bush came in fourth in South Carolina, nearly fourteen points behind Cruz, he was enough of realist to suspend his campaign that night. It may be recalled that as soon as it became clear that Jeb would run, the consensus in political circles was that he’d win the nomination. This overlooked that he had been out of politics for eight years and that during that time the electorate and his own party had changed. But it’s not just that this wasn’t Jeb’s year; he also didn’t have his brother’s ambition or mean streak. Nor did he have a master strategist like Karl Rove. It wasn’t until late in the New Hampshire contest that Jeb began to look comfortable on the stage and to perform creditably in the debates. Trump’s early attack on him as “low-energy” hit home—almost all of Trump’s insightful characterizations of his competitors do—because Bush clearly wasn’t enjoying himself.
Jeb Bush came across as a decent man; he masked that his foreign policy advisors were much the same as the neocons who’d advised his elder brother. But Jeb’s judgment wasn’t always on target: How could he not have been prepared for questions about his brother’s Iraq policy? What made him think as he was sinking in South Carolina that the thing to do was to bring in his mother and older brother to campaign for him, thus reinforcing his dependence on his patrimony? It had been eight years since George W. had been president and a lot of the younger veterans in South Carolina had served three or four tours of duty in Iraq and Afghanistan. Jeb’s family briefly stepping in for him didn’t move the needle. George W.’s one speech was only so-so. It turns out that Barbara Bush is the smartest pol in her family. When it was still a question as to whether Jeb would run, she was opposed, saying, “We’ve had enough Bushes.”
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Still, Jeb Bush’s campaign was historic in a couple of respects. It showed that family connections cannot carry one to victory, and it exploded a myth about the funding of campaigns. Numerous observers (myself included) had assumed that the Supreme Court’s Citizens United decision in 2010—allowing unlimited (and secret) contributions to be raised for a supposedly independent group backing a candidate—would have a possibly decisive impact on an election. But the whopping $150 million that Jeb raised obviously did him little good. Great sums were lavished on ads that couldn’t camouflage his weaknesses and that simply got lost in the jumble. There’s still a lot of money parked on the sidelines that could be deployed in what is now a three-man Republican race—Trump, Rubio, and Cruz (though John Kasich and Ben Carson are staying in)—but it’s not at all clear that a candidate is a good investment, at least at this stage. So much attention has been paid to Citizens United that people seem to have forgotten that even before that decision the campaign finance system was riddled with corruption.
On the night of the Nevada caucuses, held on the same day as the South Carolina primary, Hillary Clinton showed why she could still be a formidable candidate. Clearly aware of the considerable criticism that her speeches weren’t exactly soaring, she gave an inspirational victory speech. This was the candidate who, most unusually, had had to start her campaign twice: the first attempt, which mainly consisted of meeting in private in Iowa with only eight or so people, didn’t work out very well and so she started again on Roosevelt Island (with only an OK speech that she read in a sing-song manner). This was the candidate who sometimes seemed tone-deaf. But now, having defeated Bernie Sanders, who had been reported to be coming on strong in Nevada, by a vote of 53-47, Clinton gave a totally fresh performance.
Without using notes, Clinton spoke not of the various programs she wanted to sponsor—her usual fare—but of aspirations. She made it not about herself, but about people looking for a leader who understood their economic situation, or who were seeking racial justice. With a side shot at Sanders and perhaps also Trump, she said, “Americans are right to be angry, but we’re also hungry for real solutions.” She asked, rhetorically, “Who will protect the right of every citizen to vote, not every corporation to buy elections?” She worked in Wall Street (sounding a bit like Sanders) and Flint, Michigan (in an appeal to blacks)—and talked about filling the vacant Supreme Court seat.
The generational divide within the Democratic party remained dramatic: Sanders won eighteen-to-twenty-nine-year-olds by a vote of 82-14. As before, while Clinton won among older women, Sanders overwhelmingly won younger ones. In her caucus-night speech, speaking to young people’s concerns, Clinton promised to cut interest rates on student loans and cap payments (this stopped well short of Sanders’s promise of a free college education for everyone). She also did a riff that began with “Imagine….” (“Imagine a tomorrow where no child grows up in the shadow of discrimination or under the specter of deportation.”) We shall see if she has assimilated this approach.
By contrast Sanders gave much the same speech, word for word, that he’s delivered throughout the campaign—about the “rigged economy” and the billionaires who cannot be allowed to take over our politics. Of course, he didn’t give any hint that his failure to defeat Clinton in a caucus state, which is supposed to benefit him because of the intensity of his followers, boded ill for later contests, as did his failure to cut significantly into Clinton’s advantage with blacks. Despite early reports that Sanders had bested her among Hispanics, the sample was too small to be sure of that.
One way Hillary Clinton defeated Sanders in Nevada was to glue herself to Barack Obama and become his greatest cheerleader. This could also help her in important subsequent contests in which the black vote will count for a very large proportion of the Democratic voters. Obama remains highly popular within the Democratic Party, especially among blacks. Clinton chastened Sanders for suggesting one time on a radio show that someone challenge Obama from the left in 2012; Sanders expressed the view held by many on the left of the party, who felt “disappointed” in the president—failing to recognize what he’d been up against and how much he had nevertheless gotten done. But Clinton’s devotion to Obama has been situational: in her book about her State Department years, Hard Choices, she made sure to point out where she’d differed with the president she’d served, especially in her advocating, over his objection, that the United States should arm the Syrian rebels early on. At that point, Obama was doing his best to stay out of the Syrian morass—a position with which various current and former national security officials concurred.
Clinton won Nevada with a lot of help. Her husband campaigned heavily for her there, but perhaps even more important, Harry Reid, the longtime senator from that state who is arguably the boss of the Democratic party there, put his heavy hand on the scales. Clearly believing, as do virtually all of his Senate colleagues and the party leadership, that Clinton was far the stronger candidate to compete in the general election, Reid convinced the state’s union leaders to allow time off to vote in the caucuses—above all the Culinary Workers Union, which hadn’t taken a position on the primary because its workers (particularly the younger ones, as opposed to the leaders) tended to favor Sanders. Nevada could turn out to have been the turning point in Sanders’s unexpectedly strong challenge to Clinton. If Sanders couldn’t catch her there, a caucus state that looked for a while like it might go his way, it’s hard to see how he could defeat her in a large state with a substantial black vote.
And so the race for the nominations of each party for the presidency gives signs perhaps of soon settling into one between Clinton and Trump—though Sanders may have enough money from small donations to stay in the race as long as he wants. Then it’s worth remembering that this is 2016, when all sorts of surprising things have happened. Meanwhile, the Senate and the public are at this moment awaiting the president’s nomination to the Supreme Court and are settling in for a noisy and consequential battle.
