Seriously, When is Crist Going to Leave the GOP?

For more than four months I have been wondering when Florida's Republican Governor Charlie Crist, a candidate for his party's nomination for the U.S. Senate in the state in a contested primary, would leave the GOP for greener pastures, running as an Independent candidate for Senate rather than under the Republican banner. Indeed, in recent weeks Crist has bucked his party, reaffirming his support for last year's stimulus bill and generally sounding more like a moderate than an angry conservative -- which puts him at odds with his party's primary base. Public Policy Polling has just released numbers showing the extent to which Florida Republicans have become alienated by Crist, who not all that long ago was the party's golden boy.

Here's a little preview: among Republican primary voters 19% would like to see him as Governor a year from now, 14% want him in the Senate, and 56% want him out of elected office.

If there is any path to his winning office in Florida again- and there may not be- it's as something other than a Republican.

There hasn't been a great deal of polling on a potential three-way Senate race between a hypothetically Indepedent Crist, Republican Marco Rubio and Democrat Kendrick Meek -- but the available data suggests that all three candidates would be competitive. The same cannot be said of a GOP primary between Crist and Rubio, where the latter now leads by a margin of about 15 points, and growing.

So I ask again, ask I have been asking for months, how long until Crist leaves the GOP?

Goodwin Liu Was Right About John Roberts

National Review blogger Ed Whelan, who has been leading the right wing attack effort against President Obama's 9th Circuit Court of Appeals nominee Goodwin Liu (my professor at Berkeley Law), doesn't like what Professor Liu had to say about then-nominee John Roberts.

Goodwin Liu’s Cheap Attack on the Roberts Nomination

Three days after President Bush announced his nomination of John Roberts to the Supreme Court, Berkeley law professor (and new Ninth Circuit nominee) Goodwin Liu published an op-ed against Roberts’s nomination. According to Liu, “Roberts’s record is cause for concern,” and “[h]is legal career is studded with activities unfriendly to civil rights, abortion rights, and the environment.”

Whelan goes through and tries to mince Liu's words in an effort to try to undermine his nomination to the Court of Appeals. But where Whelan's post is wholly lacking is in the recognition that Liu was entirely correct in his estimation of the type of Chief Justice John Roberts would be.

Let's just look at the issue of Civil Rights, an area in which some of the most profound decisions of the Roberts era have occurred. In the case of greatest note, Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court under Chief Justice Roberts in effect gutted the heart of the Brown v. Board of Education decision of a half-century earlier with a majority so razor-thin that it evaporated into a plurality in part (that is, only part of Chief Justice Roberts' opinion garnered majority support; the rest was joined only by three other Justices, with the remaining five unwilling to sign their names). Here's Jeffrey Toobin writing about the decision in The New Yorker:

In the most famous passage so far of his tenure as Chief Justice, Roberts wrote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Roberts's opinion drew an incredulous dissent from Stevens, who said that the Chief Justice's words reminded him of "Anatole France's observation" that the "majestic equality" of the law forbade "rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." For dozens of years, the Court had drawn a clear distinction between laws that kept black students out of white schools (which were forbidden) and laws that directed black and white students to study together (which were allowed); Roberts's decision sought to eliminate that distinction and, more generally, called into question whether any race-conscious actions by government were still constitutional. "It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision," Stevens concluded.

What Roberts did here, as Justice John Paul Stevens suggests, was make new law in restricting the ability of the government to address Civil Rights in the class room, in doing so turning on its head the thrust of Brown.

To take a more recent example, the Roberts Court, by a similar 5 to 4 margin, fundamentally altered Civil Rights law in the area of employment in Ricci v. DeStefano, a case you may recall from the confirmation hearings of then-nominee Sonia Sotomayor. In that case, the Court made new law -- or as Chuck Todd put it, the majority "legislated from the bench" -- to hold it impermissible for the New Haven fire department to have altered its policy of promoting firefighters when faced with the potential of a successful suit alleging that the promotion policy, as applied, violated Title VII employment discrimination law.

I have not followed closely enough the Roberts' Court's decisions in the areas of the environment or abortion to speak to whether it has undertaken similar rightward shifts in the law (though I do know that the Supreme Court under Roberts overturned a seven year old precedent in the area of choice with its Gonzales v. Carhart decision). Nevertheless, at least in the area of Civil Rights law, it's hard for me to understand how one could argue that Liu was not prescient in his statement that Roberts was a "cause for concern."

[UPDATE by Jonathan]: It looks like Chief Justice Roberts has also not been a boon to the environment, either. Here are reports from The New York Times and The Daily Journal.

CT-Sen: Another Poll Puts Blumenthal Up 25+ Points

A month ago I asked how it was possible for the Cook Political Report to rate the Connecticut Senate race only "leans Democratic" when the likely Democratic nominee, Richard Blumenthal, lead all of his potential Republican opponents by margins of 19 percentage points or more. A month later, more polling from the clearly not Democratic-leaning Rasmussen Reports shows Blumenthal's already large lead growing.

The latest Rasmussen Reports telephone survey of likely voters in the state shows Blumenthal leading former Congressman Rob Simmons 58% to 32%. Blumenthal held a 19-point lead in this match-up last month and a 23-point lead in early January just after Dodd announced his decision not to run again.

These numbers aren't particularly surprising considering that 72 percent favorable rating now enjoyed in Connecticut by Blumenthal -- including a remarkable 41 percent strong favorable rating.

Looking back towards the topline numbers, according to the Pollster.com trend estimate, Blumenthal's lead over former GOP Congressman Rob Simmons exceeds 23 percentage points. Yet this race is still deemed by the Cook Political Report to only "lean" towards the Democrats -- a categorization that indicates a belief that the race is currently competitive. I don't see it. Perhaps I'm missing something?

Top GOP Challenger Drops House Bid

Republicans got to work early in 2009 to recruit Springfield, Oregon mayor Sid Leiken to challenge incumbent Democratic Congressman Peter DeFazio, who represents a swing district that split its 2004 presidential vote equally between George W. Bush and John Kerry (though backed Barack Obama in 2008 fairly handily in 2008). At the time, Leiken was promoted as one of the top recruits of the National Republican Congressional Committee. But now comes news, via Blue Oregon, that Leiken is dropping his congressional bid.

Initially lauded by Republicans nationally as their best hope to win a House seat long held by Democrats, Leiken faced an uphill battle against DeFazio, a 24-year incumbent. Leiken did poorly in campaign fundraising; as of the most recent filings, DeFazio had at his disposal more than 100 times Leiken’s campaign cash.

Plus, observers said Leiken’s violation of Oregon campaign laws last year could have hurt him. Leiken paid a $2,250 fine for unlawfully converting $2,000 of his mayoral campaign money to personal use.

If this were a Democrat dropping his bid against a Republican in a swing district, you know that this news would be all over the Beltway press as further proof that the Democrats' are sinking in the race to control the House in November. Of course this is a Republican dropping his bid against a Democrat in a swing district, so this news is absent from the home pages of Politico.com, TheHill.com, and CQPolitics.com.

"A Scenario Where Democrats Don't Lose the House"

Just a few weeks ago, Charlie Cook said that it's "very hard to come up with a scenario where Democrats don't lose the House." The quote may seem familiar; I have referenced it a couple times in recent days.

If Cook is still looking for such a scenario, the respected pollster Ipsos, surveying the country for McClatchy newspapers, has provided it:

Looking ahead to November's elections, 50 percent said they'd vote for Democratic candidates if the election were today, while 40 percent said they'd vote for Republicans.

The Democrats' 10-point generic ballot lead in the Ipsos-McClatchy poll represents a net improvement of 3 percentage points since early November, a move within the survey's margin of error.

It is worth noting that these numbers do not look like the latest trend estimate from Pollster.com, which actually gives the GOP a narrow 43.0 percent to 42.4 percent lead in a nationwide race for Congress. However, that narrow Republican advantage is the result of the plethora of data from a single pollster: Rasmussen Reports. When these surveys are excluded, the numbers shift more than 6 points towards the Democrats, with a Democratic edge of 47.1 percent to 41.5 percent.

So there definitely is a universe in which it is "very hard to come up with a scenario where Democrats don't lose the House": that of Rasmussen polling. And that may be the reality on the ground come November. But in the reality represented by the composite of all other polling, including this latest Ipsos survey, the Democrats' goose is not nearly cooked.

Scalia is Originalist... Except When He's Not

One of the lingering questions I have had since the NAMUDNO decision was handed down over the summer is just how the self-professed "originalists" on the Court could square their skeptical views on the constitutionality of the Voting Rights Act with the very plain intention of the framers of the 15th Amendment that Congress, rather than the Court, should have the power to enforce Americans' right to vote. When the amendment was drafted in the years following the Civil War, the context was clear: the Supreme Court, whose disastrous Dred Scott decision not only was one of the impetuses for the war but also served to enshrine the institution of slavery, was not to be trusted; instead, faith would be placed in the Congress, which was then firmly under the control of the progressive (particularly on racial issues, but also on many economic ones as well) Radical Republicans. With that original intent fairly clear, how could an "originalist" sitting in a Court more than a century later, rule to limit Congress' power in this area?

It looks like I'm not the only one wondering whether the fealty shown by these so-called "originalists" to the original intent behind the Constitution is genuine or rather a rhetorical device to be thrown out when inconvenient. Here's the not-so-liberal Wall Street Journal's Law Blog:

In Wednesday’s WSJ, however, Georgetown Law Professor Randy Barnett takes serious issue with the court’s hesitation [to use the "Privileges or Immunities" clause of the Fourteenth Amendment as the basis for finding that the Second Amendment applies to the states] — specifically at those justices, like Justice Scalia, who claim to be “originalists,” or guided by the Constitution’s “original” meaning. Barnett writes that a glance at the original meanings behind the PorI Clause and the Due Process clause lead to one conclusion: that PorI is the proper vehicle for Second Amendment incorporation.
But what about the clause protecting the “privileges or immunities of citizens of the United States”? . . . Actually, the right to keep and bear arms was among the most frequently mentioned privilege of citizens when the amendment was being considered in Congress.

The evidence is clear that the privileges or immunities of citizens included those rights in the Bill of Rights. As Michigan’s Sen. Jacob Howard explained to the Senate, these privileges or immunities included, among others, “the personal rights guarantied and secured by the first eight amendments of the Constitution; such as . . . the right to keep and to bear arms.”

In contrast, no one thought the language of the Due Process Clause included a right to arms. On this point there is consensus among constitutional scholars whether left, right or libertarian.

According to SCOTUSblog, Justice Antonin Scalia, who fancies himself to be an "originalist," had the following to say about the invocation of the "Privileges or Immunities" clause:

“Why,” Scalia asked Gura, “are you asking us to overrule 140 years of prior law….unless you are bucking for a place on some law school faculty.” The Justice said the “privileges or immunities” argument was “the darling of the professorate”...

I'd recommend you read the whole WSJ post, because it's interesting and gets to the heart of this very key question: Just how much do the "originalists" actually care about original intent?

Funny or Die on Financial Regulation Reform

This is pretty amazing...

Confirm Goodwin Liu to the Court of Appeals

As I noted here last week, President Obama has nominated Goodwin Liu, a constitutional law professor of mine at the University of California Berkeley School of Law, to a position on the United States Court of Appeals for the Ninth Circuit.

Unsurprisingly, the right wing is already setting its sites on Professor Liu, just as they have on virtually all of the President's other judicial nominees. I have tried to correct some of the record with regard to Professor Liu here at MyDD. But in an effort to broaden the effort, I have created a new website in support of his nomination: ConfirmGoodwin.com.

The site is already loaded with a good deal of information -- statements from academics, politicians and media outlets of all stripes, Professor Liu's biography, fact checks. The site also contains a petition so that people can register their support for the nomination.

Professor Liu would make a great federal judge. Don't just take my word for it. Ask the American Bar Association, which awarded Goodwin Liu it's highest possible rating: a unanimous "well qualified." Ask the Sacramento Bee, which recently editorialized that "it is hard to image anyone who's better qualified than Liu." Ask the officials and academics from across the ideological and political spectrum speaking out on behalf of Professor Liu's nomination. Stop by ConfirmGoodwin.com today.

Continuing the Conversation with Charlie Cook

The past few weeks and months I have been writing quite a bit about my view, contrary to those held by many inside the Beltway and Charlie Cook specifically, that the Democrats' control of the United States House of Representatives is all but lost at present. Don't get me wrong, I am not so obtuse to believe that the political environment favors the Democrats. But I just don't buy the notion that the Republicans are on the verge of retaking the House in the upcoming midterm elections.

Yesterday I wrote a post noting internal Democratic polling showing one of the red state Democratic incumbents the Cook Political Report currently rates in the "tossup" category leading by margins well in excess of 20 points against named challengers. "If the Republicans can't even be competitive in an R+16 district featuring a freshman Democrat in a race Cook now labels as 'a tossup,'" I asked, "how, exactly, are they supposed to win back the 40 seats they need to regain a majority in the chamber?"

Charlie has been kind enough to respond with four comments on my post. I have included the full text of each comment below the fold, for those interested. Here are a few grafs culled from these comments that seem to be representative.

Jonathan, I think what this poll suggests is that Democrats in tough districts who have opposed the Democratic Congressional leadership and the President on just about every important matter, have a decent chance of surviving.
My job, having started the Cook Political Report in 1984, is to call them as I see them. We saw a big wave coming in 1994 but underestimated it then. In 2006 we saw one and nailed it. We saw signs of problems and began writing and talking about it last summer and see little sign that we are wrong. If more Democrats had the cover that Bright had, maybe we would be.
Yes, we have been writing "Dems in trouble" for about eight months now, but it isn't much different from when we were writing that Republicans were in trouble during the 2006 and 2008 cycles. And Republicans were in fact in trouble. Our job is to watch races individually and look for trends. If the partisans for the side on the short end of the trends don't like it, they typically attack the messenger. you can be sure that Republicans weren't happy with what we were writing in the months leading up to the 2006 election, but we were right.

All of the points that Charlie makes are fair. I don't dispute that the polling I cited showing a red district freshman Democrat presumed to be endangered nevertheless leading his GOP challengers handily involves one of, if not the most conservative Democrat in the House (though I do not know that this disproves my contention that if the Republicans can't win in an R+16 district they aren't going to retake the House this fall). I also don't dispute that Charlie was right about 2006, a prediction for which he should be credited (even if he was not alone in such a forecast). What's more, I appreciate that he came by to engage, not only with my post but also with the commenters in the thread. In fact, I would be interested in hearing more from him, specifically on a point I raised in my post immediately preceding the post in question (and in other posts) -- namely that if the GOP were really on the verge of retaking the House, why are so many would-be Republican chairmen retiring rather than waiting out a few months for their pending majority.

What I would like to note, however, is that while I don't dispute the particular points that Charlie is making, I still don't buy his overall thesis. This isn't the first time that the two of us haven't seen eye-to-eye. The last time he came on the site to comment on one of my posts, back in December 2007, it was to defend the projection made by his publication that the Democrats would pick up between two and eight seats in the House in the 2008 election -- a projection I believed to be too dour towards the Democrats, about whom I wrote, "I'd be surprised if [they] didn't net a pick up of at least 10-15 seats in the House next fall." As it turned out, the Democrats netted a 21-seat pickup in the House that fall. In May 2006, he commented similarly, downplaying my reading of his House race analysis as a major shift towards the Democrats (while, in fairness, also saying "one could reasonably say that the House is close to 50-50, perhaps a bit better for Democrats"). Earlier that year he stopped by MyDD to comment on a post I wrote questioning whether the Democrats would necessarily be worse off in the event that GOP Congressman Bob Ney retired instead of running for reelection. Cook wrote, "If you are a Democrat, you need to really hope that Bob Ney does NOT retire." In the end, Ney did retire, but the Democratic nominee, Zack Space, won by a 24-point margin nonetheless.

My purpose in highlighting these exchanges is simply to provide some context to the comments Charlie made on my recent post. (It is most certainly not to prove any prescience on my part, a character trait of which my lacking has been plain to me for a long time.) In recent years, Charlie has stopped by MyDD either to defend his publication's projections from my criticism that they are not sufficiently rosy about the Democrats, or to criticize my projections for being excessively rosy for the Democrats. These comments aren't too dissimilar, with me stating my contention that his projections are too downbeat on the Democrats and him defending his views against such criticism.

Until we see the actual results of the 2010 midterms, Charlie isn't likely to convince me that I am being too optimistic about the Democrats' chances, just as I am unlikely to convince him that he is being too bleak. That's okay. But to the extent that the views represented in his publication have an impact on the outcome of the election -- that the Cook Political Report, like other similar journals, is read by contributers trying to discern how best to make their political donations -- I only wish that he were willing to exhibit some of the caution he showed on this site and others at around the same point in the 2006 cycle (when, again, to be fair, he also stated "one could reasonably say that the House is close to 50-50, perhaps a bit better for Democrats"):

While the vast majority of MyDD readers are Democrats and badly want to see a Democratic takeover of the House, our job is to be right, and we are often open to criticism for being cautious, but that is something that our subscribers over the last 22 years have come to expect.

At least from my vantage, it is not "being cautious" to state, as Charlie did just last month, that it is "very hard to come up with a scenario where Democrats don't lose the House." But we shall see -- and not so long from now, either (in just eight months, to be precise).

There's more...

Shutting Down the Government

The Republicans don't seem to have learned the lessons from the 1995-1996 budget showdown, after which they were punished for having forced the closure of the federal government.

Two thousand federal transportation workers will be furloughed without pay on Monday, and the Obama administration said they have a Kentucky senator to blame for it.

Federal reimbursements to states for highway programs will also be halted, the Transportation Department said in a statement late Sunday. The reimbursements amount to about $190 million a day, according to the House Transportation and Infrastructure Committee.

The furloughs and freeze on payments were the result of a decision last week by Republican Sen. Jim Bunning to block passage of legislation that would have extended federal highway and transit programs, the department said. Those programs expired at midnight Sunday.

The extension of transportation programs was part of a larger package of government programs that also expired Sunday, including unemployment benefits for about 400,000 Americans.

The current shutdown, caused by a Republican filibuster, is not on the same scale as the closure nearly 15 years ago -- but it is no less as risky a proposition for the GOP. While the Senate Republicans have blown through the filibuster record during this session, trying to thwart any sense of majority rule in the chamber, their obstructionism has not yet had much of a face to the American people. Yes, healthcare reform has been stalled. But for most Americans, the gridlock in Washington seems to be somewhat of a normal occurrence.

Yet this shutdown changes the game. Republican filibusters now have a face: 2,000 workers furloughed from their jobs, and what's more much-needed transportation construction projects put on hold.

Diaries

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