Thursday, April 28, 2016

Convention-al Wisdom: A Progressive Campaign Will Appeal To A Non-Neanderthal Electorate

"There's nothing in the middle of the road but yellow stripes and dead armadillos." -- Jim Hightower
Here we go.  The experts, pundits and insiders are beginning to suggest that Hillary Clinton, having sewn up the nomination by tacking to the left, must now move to the right for the general election.  For example, The New York Times, "cites some Democrats" who are concerned that if Clinton embraces positions pushed by Bernie Sanders, it "could later hurt Mrs. Clinton and other Democratic candidates."  And who are these "some Democrats"?  We don't know because they aren't named.  The only source for this bit of conventional wisdom, comes from the founder of the "Third Way," the fiscally conservative, so-called centrist group that had far too much influence over the first President Clinton.

The mainstream media continues to yearn for a candidate who magically will unite the left and right by appealing to ordinary (white) Americans  -- a candidate who will eschew the polarizing effect of embracing such progressive concerns as climate change, economic inequality, Wall Street corruption, campaign finance, mass incarceration, immigration reform, reproductive rights and LGBT rights.  According to the conventional wisdom, Hillary's failure to hew to the right will not only endanger her candidacy, but it will be the singular cause of a dispirited electorate and increasing rancor and gridlock on Capital Hill.  As the always insufferable David Brooks warned a while back, Clinton's campaign will become destructive and divisive if she "dispens[es] with a broad persuasion campaign" that fails to attract the ever-elusive swing voter.

We will continue to hear more of this fact-free claptrap about the need to resist pressure from the Sanders campaign and move to the center; about how Clinton and her fellow Democrats must seek to attract moderates and independents rather than continue to engage in narrow and potentially divisive pandering to liberals. But this unquestioned conventional wisdom is sorely out of date. 

It ignores that the Republicans have moved so far to the right and are so ideologically extreme that the center is nowhere near where it used to be. 

It ignores that while the Republican Party is moving to the right, the electorate -- increasingly younger and less white -- is moving to the left.  Indeed, the underlying premise that liberal ideas are unpopular and inherently divisive is simply wrong, with recent polls consistently showing that Americans have shifted to more liberal positions on a variety of issues.

It ignores the outsized role that Americans who are angry and frustrated with the status quo will play in this year's election.  It is a fact that independents are no longer -- if they ever were -- the equivalent of middle-of-the-road, moderate voters.  They are, instead, reflective of those energized by the Sanders campaign who decry the corrupting influence of money in politics and the widening gap between the haves and have-nots.  Moving to the center is going to alienate, not engage them.

It ignores that Clinton's leftward-leaning campaign has done nothing to undermine her support with the various constituencies of the Democratic Party that she has energized and that what she now needs to do is engage the voters energized by Sanders. 

And it ignores that Clinton actually is pretty liberal.  Sure she had a bad patch of supporting her husband's horribly misguided policies in the 1990s, and there is no excusing her Iraq War vote.  But she does have long history of supporting core progressive positions on reproductive rights, on childhood poverty, on health care, on gun control and a host of other issues.  As pointed out at FiveThirtyEight, she was one of the most liberal members of the Senate when she was there and has a history of espousing liberal views.

So, here's some wisdom for the Convention and beyond that stands at odds with the conventional wisdom:  Clinton must unequivocally embrace a progressive party platform.  She must choose a running mate to her left.  At the Convention, Elizabeth Warren should be the keynote speaker, Bernie Sanders should nominate Clinton, and other progressives must play prime time roles.   

A campaign and candidacy that focuses on progressive themes and chastises Trump, Cruz/Fiorina or whoever runs on the Republican side for not believing in climate change, for seeking to undermine women's reproductive rights, for their hostility to LGBT rights, for inhumane immigration proposals, for insisting that tax cuts for the wealthy are always the cure for what ails the economy, for facile demagoguery in the place of foreign policy ideas, might alienate extremist Republicans.  But such an approach will appeal to the wide swath of non-Neanderthal voters needed to elect the next president. 

Wednesday, April 20, 2016

Thanks For Playing, Bernie

I would seem to fit the demographic that has come out full throttle for Bernie Sanders -- I consider myself very progressive in my politics and live in Berkeley, California, very comfortably among my fellow progressives; I am a (relatively) well educated, white, professional; I have been a big fan of Bernie Sanders since he was elected mayor of Burlington, Vermont in 1981, when I was in college there.

Yet, as I've written before, I just haven't felt the Bern.  To me, Sanders has been a great protest candidate who has invaluably raised the profile of critical issues about the root problems of our democracy and our economy.  He has no doubt pushed Hillary Clinton to take more progressive positions than she otherwise would have.  He has excited young (white) voters and drawn wildly enthusiastic crowds of progressive-minded people who will hopefully remain engaged in the political process.

But I have never viewed Bernie Sanders as a realistic candidate for President.  If his Congressional career and presidential campaign are any guide, he is far better at oppositional politics and protest than policy.  His proposals -- from single payer health care to free college tuition -- are wonderful, worthy ideas that lack any chance of getting through Congress. His overarching goal to stop money from corrupting the political system is righteous and admirable, but he has yet to realistically explain how he would make this happen. 

And, crucially, while Sanders' national poll numbers remain high, if he were actually seen as a threat to Republicans -- or if he were to actually win the Democratic nomination -- he would be swift boated and red baited faster than you can say "Joseph McCarthy" by an enormously well-financed Republican machine.  Sanders is a socialist Jew whose radical left wing past would provide endless fodder for devastating attacks. He honeymooned in the Soviet Union.  He sought conscientious objector status during the Vietnam War.  He has called for eliminating the CIA.  He served as an elector for the Socialist Workers Party at a time when it supported abolishing the military budget and seeking solidarity with revolutionary regimes in Iran and Cuba. These positions might not matter to progressives -- indeed, they may comprise a badge of honor --  but in a time where Republicans so expertly prey on American fears of terrorist attacks, they would be used to undermine his support among moderates and independents critical to a Democratic victory.  Look what they did to John Kerry, who actually served heroically in Viet Nam.

It surely has been dispiriting and frustrating to his legions of supporters to find that Sanders' candidacy has not been embraced by the wider Democratic Party and appears to have been undermined by the Party's Establishment.  But it is important to remember that Sanders is not really a Democrat.  He has long been an Independent who as a member of Congress chose to caucus with Democrats, and has joined the Party solely for his presidential run. 

Moreover, unlike Clinton, Sanders has not raised funds to support Democrats down the ballot -- a critical step for any candidate who hopes to lead his or her Party.  And, that's a fundamental problem for Sanders when it comes to winning the Democratic Party's nomination -- he doesn't want to lead the Democratic Party.  He wants to lead a left-leaning political revolution (not that there is anything wrong with that).  But the Democratic Party for better or worse (and often, for worse) put rules in place to limit the ability of insurgent candidates to win the nomination.  If Sanders wants to revolutionize the political system, perhaps he will be able to change these rules for the next insurgent.  In any event, while the Sanders campaign complains about the unfairness of Super Delegates, the bottom line is that Clinton is beating him handily when it comes to pledged delegates and the popular vote. 

And now that Clinton has won the New York primary so decisively, Sanders' very difficult path to the nomination has become nearly impossible.  Nate Silver puts Clinton's chances to win somewhere between 95 and 99.5%. 

So what's next for Sanders? 

He doesn't need to drop out of the race.  He should keep campaigning on his signature issues.   He should go to the Convention and push for changing the rules to make it less arduous for a grassroots candidate to win the nomination.  He should begin campaigning for Senate and House candidates in key races and urge his supporters to participate in local races where they could make an enormous difference.  Most of all he should stop attacking Hillary Clinton's judgment and character.  He needs to make absolutely clear to Hillary-haters, Ralph Nader dead-enders and Independents that Clinton is not the scurrilous enemy caricatured by the right -- that it is the Republican candidates who pose a real and present danger to our society and must be defeated. 

You say you want a revolution?  Let's elect a Democratic president and a Democratic Senate (think Elizabeth Warren as chair of the Banking Committee, the return of Russ Feingold, and other progressives in key leadership positions), more Democratic representation in the House, and more Democrats in state houses.  A Democratic President and Senate will lead to the confirmation of nominees to the Supreme Court (and lower federal courts) that will tip the balance to the left for the first time in decades, and transform the Court from the most corporate-friendly one since the 1930s to one that is far less deferential to polluters and Wall Street fraudsters, and far more protective of women's health and reproductive rights, LGBT rights, criminal justice, consumer rights, voting rights and civil rights.  Citizens United and other unprincipled decisions of recent terms can be overturned.

That might not be considered revolutionary, but I'll take it. 

Monday, April 11, 2016

Down Ballot Blues: Hillary Clinton Can Better Help Democrats Take Back The Senate

Assuming a Democrat wins the White House but the Senate remains in Republican hands, there will be no political revolution as Bernie Sanders promises and little of the relatively more incremental change that Hillary Clinton proposes.  Supreme Court vacancies, including the current one, will likely remain vacant, with Republicans having no incentive to confirm a Democratic nominee -- even after the election.  Indeed, it is hard to imagine very many Republicans foolhardy enough to dissent from a rabid GOP base that would strenuously object to any nominee to the left of the late Antonin Scalia.

On the other hand, if the Democrats can take back the Senate -- and gain seats in the House -- it is far more likely that a Democratic President can successfully pursue progressive policies.  (Think Elizabeth Warren as Chairperson of the Banking Committee.)   More importantly, in my view, the balance of power on the Supreme Court would shift to the left of center for the first time since about 1970, and with that shift (along with a similar shift in the lower federal courts), there is enormous potential to transform society with a justice system that would advance, rather than impede, privacy and reproductive rights, civil rights, voting rights, consumer and workers' rights, and criminal justice. 

There's your political revolution!

The Democrats need to pick up just four seats to control the Senate (with the Vice President then serving as tie-breaker), and there appear to be at least six seats currently held by Republicans that can be had -- Wisconsin, New Hampshire, Illinois, Ohio, Florida and Pennsylvania.  (Colorado and Nevada, currently held by Democrats, however, are also in play.) 

The Republicans who find Trump too abhorrent and erratic and Cruz too creepy and extremist may sit out the election altogether, greatly benefitting Democratic candidates.  Meanwhile, particularly if Trump is the nominee, Republican Senate and House candidates in these battleground states will be put in the uncomfortable position of having to distance themselves from their own presidential candidate (and conservative voters) or risk alienating independents -- especially independent women -- and whatever remaining moderate Republicans still exist.

But still there are huge challenges for Democrats, most significantly, the likelihood that the Koch Brothers and other right wing mega-donors, realizing that neither Trump or Cruz are electable, will focus their vast resources on Senate and Houses races to keep Congress in Republican hands.  Which leads to a critical question of which Democratic candidate is better equipped to help Democratic candidates down the ballot.  The answer is the only real Democrat in the race -- Hillary Clinton. 

Sanders has been an Independent for his entire political career -- as mayor, Congressman and Senator.  He only became a Democrat to run for President.  Not that there is anything wrong with that.  But his campaign staff and wildly enthusiastic supporters appear so focused on "The Bern" that they have yet to even consider supporting other Democratic candidates.

Hillary Clinton, unlike Sanders, has deep ties to the Democratic Party that go back at least to her work on George McGovern's campaign. As Clinton herself said:  “I’m also a Democrat and have been a proud Democrat all my adult life. I think that’s kind of important if we’re selecting somebody to be the Democratic nominee of the Democratic Party.  But what it also means is that I know how important to elect state legislatures, to elect Democratic governors, to elect a Democratic Senate and House of Representatives.”

And Clinton, in great contrast to Sanders, has put her money where her mouth is.  In addition to raising money for her own campaign, Clinton raised an additional $15 million for the DNC and state parties in the past quarter.  Sanders has not raised a penny for other Democratic candidates during this time.  Indeed, when Sanders was asked by Rachel Maddow last week whether he would turn his fundraising ability toward helping the Democratic Party more broadly, including helping their campaign committees for the House and the Senate, his noncommittal response was:  "Well, we’ll see. And, I mean right now, again, our focus is on winning the nomination."

As Jamelle Bouie put it "Hillary Clinton is running to lead Democrats, and Bernie Sanders is running to lead liberals."  Consequently, Clinton is more concerned with traditional party building and leading a broader coalition that includes not only the liberals and progressives that Sanders is courting.  While this often results in what appears to be Clinton's infuriating hedging and measured compromise on issues in order to please conflicting constituencies, it also means that she is far better equipped to help a wide range of Democratic candidates down the ballot.  And, it is only by taking back the Senate -- and then the Supreme Court -- and defeating Republicans in local elections throughout the Country that there is even a possibility of true progressive change.

Monday, April 4, 2016

Another Poster Child For California's Dysfunctional Death Penalty

After 35 years on death row, Bernard Hamilton died of "natural causes" at the age of 64.  How profoundly messed up is our system of criminal justice that I could even write such a sentence?  What an enormous waste of judicial resources.  What an enormous waste of taxpayer money.  What an enormous waste of time, emotion and hard work for the countless people who have tried to kill him and for those who tried to save him. 

California's death penalty system is so dysfunctional that even after 35 years, issues regarding the reliability of his conviction and the fairness of his death sentence have not been resolved.  And now they never will be because Bernard Hamilton has died of "natural causes" at the age of 64.

What madness.
In 1981, Bernard Hamilton was found guilty of the murder of a woman named Eleanore Buchanan and sentenced to death.  Although the facts of the crime are quite gruesome, the trial itself was a travesty.  (Most notably, Bernard was shackled throughout the trial, originally at his own lawyer's suggestion, calling into question both whether his lawyer could possibly represent him impartially and whether the jury would view him as anything but uncontrollably dangerous.) 

In the early 1990s, as a relatively young lawyer, I was assigned to work on Bernard's case.  By then, there had already been several dramatic twists and turns that were not untypical of the death penalty post-conviction process in California.

In 1985, the California Supreme Court reversed Bernard's death sentence because the jury was never instructed that it had to find an intent to kill before finding him eligible for the death penalty.  (The jury had found him guilty of intent to rob and kidnap, but not that the murder itself was intentional.)  The U.S. Supreme Court vacated that decision and sent the case back to the California Supreme Court for reconsideration.  Unfortunately by the time the case returned, the California Supreme Court's three liberal justices, including Chief Justice Rose Bird, had been recalled and replaced with three extremely conservative justices.  Not surprisingly, the newly transformed court reinstated Bernard's death sentence.

After state court remedies are exhausted, challenges can be made in federal court and that is where I became involved.  Ultimately, in 1994, we were able to win a reversal of Bernard's death sentence based on another instructional error.  The federal appellate court (The Ninth Circuit) agreed that the jury sentenced Bernard to death after having been misled about the likelihood that the governor could commute his sentence if the jury gave him LWOP instead of death.  (In fact, the governor did not have the power to do so.)

The San Diego District Attorney did not have to seek another death sentence.  Had he done nothing, Bernard would have been sentenced to LWOP.  Even back then, Bernard was in very poor physical health and showed signs of serious mental illness.  And despite the fears that led to his shackling during the first trial, Bernard had been a model prisoner in his years on the row.  But the D.A. sought death again, and Bernard was retried in 1995.  Remarkably, despite his impairments, he was permitted to represent himself and was again sentenced to death.  It took another 14 years for the California Supreme Court to review and uphold his death sentence on appeal.  Substantial challenges to his conviction and sentence were pending when he died. 

In 2008, the California Commission for the Fair Administration of Justice (CCFAJ), after its extensive study of the state's death penalty system, concluded that the process for reviewing death sentences was “plagued with excessive delay” in the appointment of post-conviction counsel and a “severe backlog” in the California Supreme Court's review.  Since the publication of this report, it has only gotten worse.  For the reasons explained here, California's death penalty scheme is irrevocably broken and the delay is due to the inherently dysfunctional nature of the process.

U.S. Court of Appeals Judge Arthur L. Alarcon and law professor Paula Mitchell  co-authored a ground-breaking study in 2011, concluding that "since reinstating the death penalty in 1978, California taxpayers have spent roughly $4 billion to fund a dysfunctional death penalty system that has carried out no more than 13 executions."  A year later, an updated study revealed that "if the current system is maintained, Californians will spend an additional $5 billion to $7 billion over the cost of LWOP to fund the broken system between now and 2050. In that time, roughly 740 more inmates will be added to death row, an additional fourteen executions will be carried out, and more than five hundred death-row inmates will die of old age or other causes before the state executes them."

There are currently nearly 750 men and women on California's death row.  Like Bernard, they are far more likely to die of natural causes than to be executed.  Indeed, since 1978, 70 condemned inmates have died from natural causes and 8 from other causes.  25 have committed suicide.  13 have been executed.

What madness.

California's death penalty is a costly government program that doesn't work and can't be fixed.  But it can be replaced.  Headed for the ballot in 2016 is the Justice That Works initiative to replace the death penalty with LWOP - - and require defendants sentenced to LWOP to work in prison, with 60% of their wages going to victim restitution.  A Legislative Analyst's Office has determined that replacing the death penalty with LWOP would save California $150 million a year, by reducing the costs of trials and subsequent appeals.

To find out more, to volunteer and/or to donate click on this link:  Justice That Works.

[See also The Arbitrary Execution of Tom Thompson]

Sunday, April 3, 2016

Time Begins On Opening Day

You spend a good piece of your life gripping a baseball, and in the end it turns out that it was the other way around all the time.  -- Jim Bouton
The long-time sportswriter for the Washington Post, Thomas Boswell, wrote a timeless piece collected in a book of the same name, Why Time Begins On Opening Day, published in 1984.  Boswell muses on the "resolute grasp" that baseball maintains for so many of us" and why our "affection for the game has held steady for decades, maybe even grown with age."  He asks what baseball is doing among our other "first-rate passions."  And, indeed, when one looks over the posts on this blog, it could seem incongruous to have baseball up there with such serious and important issues as social justice, criminal justice and politics. 

Boswell explains that "in contrast to the unwieldy world which we hold in common, baseball offers a kingdom built to human scale.  Its problems and questions are exactly our size.  Here we may come when we feel a need for a rooted point of reference."  It is not that baseball is an escape from reality, "it's merely one of our many refuges within the real where we try to create a sense of order on our own terms."  And here's the key, I think:  "Born to an age where horror has become commonplace, where tragedy has, by its monotonous repetition, become a parody of sorrow, we need to fence off a few parks where humans try to be fair, where skill has some hope of reward, where absurdity has a harder time than usual getting a ticket."

As Boswell points out, baseball "offers us pleasure and insight at so many levels and in so many forms."  There is history -- an "annual chapter each year since 1869."  At the ballpark itself there is "living theater and physical poetry."  And perhaps, "baseball gives us more pleasure, more gentle unobtrusive sustenance, away from the park than it does inside it," pouring over box scores, crunching statistics, debating players and teams with our cohorts, and watching games and highlights on tv.  "The ways that baseball insinuates itself into the empty corner, cheering up the odd hour, are almost too ingrained to notice."

Opening day is finally here.  Play ball!

Friday, March 25, 2016

Deeper Into Movies

In a sign of the times, our local video store closed a couple of weeks ago, but not before having a massive sale of its inventory.  Unfortunately, I got there at the tail end and by then the pickings were relatively slim -- although I was able to pick up a few favorite westerns (Jeremiah Johnson, the original 3:10 to Yuma, and one of the many great Anthony Mann-directed films, The Tin Star), a classic noir (Night and the City) and a family favorite (Waiting for Guffman).  This led me to think about what movies are truly worth owning -- not necessarily the greatest movies but those that for whatever reason are touchstones for me; movies of which I never tire, although I've seen them countless times, and that I feel compelled to share with my loved ones.

Here is my personal and idiosyncratic list of favorite movies, keeping in mind that "favorite" does not necessarily mean "best." 

1.  Duck Soup (1933) (my favorite Marx Brothers movie, but any of the other early ones would easily qualify for this list)
2.  Sullivan's Travels (1941) (or just about any other Preston Sturges movie)
3.  The Maltese Falcon (1941)
4.  Harvey (1950)
5.  The Searchers (1956) (just one of the many classic westerns to choose from)
6.  The Guns of Navarone (1961) (also one of so many WWII movies that I would (and do) watch again and again)
7.  The Manchurian Candidate (1962)
8.  To Kill A Mockingbird (1962)
9.  Dr. Strangelove  (1964)
10. A Shot in the Dark (1964) (or any of the other early Pink Panther movies)
11. The Graduate (1967)
12. Planet of the Apes (1968)
13. Butch Cassidy and the Sundance Kid (1969)
14. Little Big Man (1970)
15. Harold and Maude (1971)
16. Fiddler on the Roof (1971)
17. The Godfather (1972) & The Godfather II (1974)
18. Young Frankenstein (1974)
19. One Flew Over the Cuckoo's Nest (1975)
20. Annie Hall (1977) (and other early Woody Allen)
21. Diner (1982)
22. Bull Durham (1988)
23. My Cousin Vinny (1992)
24. Groundhog Day (1993)
25. The Big Lebowski (1998)

Wednesday, March 16, 2016

Obama's Troubling SCOTUS Pick

President Obama's choice for the Supreme Court of the indisputably brilliant and eminently qualified jurist, Merrick Garland, seems like the tactical move of a political genius.  Garland is truly a "centrist" judge, with a reputation for fairness, civility and following the rule of law.  He has taken the traditional route to the federal judiciary:  (1) Harvard Law School, (2) prestigious clerking positions (Judge Friendly on the Second Circuit and Justice Brennan on the high court), (3) prosecutor (including supervision of the Oklahoma City bombing prosecution), (4) corporate lawyer.  He is a 63-year old white male who has served on the D.C. Circuit since 1995.  Republicans have no legitimate argument for blocking confirmation hearings or, much less confirmation itself of such a reputable, non-partisan nominee. 

Thus, Obama has laid the groundwork for a sustained attack on the unprecedented obstruction of the GOP.  Republicans in the Senate will be able to do little more than offer increasingly lame arguments that have no basis in tradition or logic that will resonate only within their rabid, fact-free echo chamber. The Democratic nominee for president will have strong grounds for challenging the extremism of a Republican Party that won't even given such a moderate choice a hearing. 

But while this might appear to be at least a shrewd short-term strategy, I fear that it is an enormous mistake for several reasons.

First, key to using Republican obstruction against them and highlighting the importance of the Supreme Court as an election issue is a unified push by liberals that urges the Senate to, as Elizabeth Warren so forcefully put it, "do your job."  But, I for one, don't want the Senate to confirm this particular nominee, particularly given his pro-prosecution record on criminal justice issues.  I may be wrong, but I doubt if there are many progressive advocacy groups excited to mobilize for his nomination either.

Second, assuming Hillary Clinton wins the Presidency, the Senate Republicans will likely have an epiphany about doing their job, realizing that Garland is going to be a far more conservative pick than anyone that Hillary will nominate.  Thus, while there is no chance Garland will be confirmed before the election, he will likely be confirmed during the lame duck period before Hillary takes office.  This will deprive the next Democratic president of filling Scalia's seat with a progressive or at least a left-of-center nominee.  And it will put on the bench a justice who is unlikely to shift the court on many critical issues, particularly when it comes to criminal justice and the death penalty.

Third, Obama could have chosen from a deep bench of progressive legal minds with diverse ethnic backgrounds that would fire up a liberal base that might not otherwise be very enthused about a Clinton candidacy.  I couldn't agree more with Kerry Eleveld who put it like this:
Progressives could have had three people on the ballot come November—the nominee, VP, and the SCOTUS pick who never got a vote. If that person had looked in any way like the group of voters who form what's become known as "the Obama coalition," she or he could have symbolized the very future of our nation that Republicans are actively working so hard to deny.
On the other hand, this could turn out to be genius.  Perhaps the Garland nomination will hurt vulnerable Republican Senators who must uncomfortably defend their obstruction.  Then, when Hillary wins and the Democrats take back the Senate, Obama can graciously withdraw the nomination, claiming that, as the GOP had been saying all along, it is up to the next president to choose the next Supreme Court justice. Hillary then picks a true progressive that shifts the balance of the Court and we all live happily ever after.

Monday, March 14, 2016

Supreme Court Justice For All? The Shameful Attack On Zealous Advocates For The Despised

The popular version of the heroic criminal defense lawyer is one who tirelessly defends the wrongly accused, saving a client who is more victim himself (or herself) than perpetrator.  In real life, defense lawyers are usually called upon to represent the guilty, to provide a vigorous defense for those who have committed despicable acts.  This is a far more heroic calling. Indeed, it is critically necessary to our system of justice to have dedicated, skillful advocates representing people who are hated and feared, and ensuring that the government is following the law.

I recently argued that President Obama should nominate a criminal defense attorney to the Supreme Court.  (A Public Defender For Justice)   In my view, lawyers who have represented criminal defendants, who have challenged the power of the government, who have fought violations of human rights and civil rights, bring a critical perspective about challenges facing the most vulnerable in our society, and about the inherent biases in the legal system against the poor and people of color and those accused of crime, who are often both.  This is a perspective sorely missing on the high court, as well as throughout the federal judiciary, in which prosecutors out number public defenders by more than 3 to 1.

Unfortunately, it is becoming  all too common that zealous lawyers who take on the cases of notorious clients are themselves targeted and deemed essentially ineligible for higher office.  One ideal candidate for the Supreme Court is Jane Kelly, a former public defender who now sits on the U.S. Court of Appeals for the Eighth Circuit, having been confirmed by the Senate in a 96-0 vote.  Shamefully, a conservative group called the Judicial Crisis Network has launched a preemptive attack against Judge Kelly for having represented a man named Casey Frederiksen for child pornography when she was a public defender.  It turns out Frederiksen was later convicted for killing a five-year old girl and the fact that Kelly provided constitutionally-mandated representation for this very bad man makes her unworthy of a Supreme Court nomination. 

This is part of an all-too-familiar strategy.  In 2010, Liz Cheney and her group, Keep America Safe, launched a smear campaign against lawyers in Obama's Justice Department, referring to them as the "Al Qaeda 7," for previously having represented Guantanamo detainees.  A group of former Bush Administration officials and other prominent lawyers thankfully shot back, publishing a letter condemning Liz Cheney's ad.  They rightfully stressed that "the American tradition of zealous representation of unpopular clients is at least as old as John Adams's representation of the British soldiers charged in the Boston massacre."

Two years ago, the United States Senate voted to reject Depo Adegbile, an otherwise sterling choice to run the Civil Rights Division of the Justice Department, because he headed the NAACP Legal Defense and Education Fund when it represented Mumia Abu-Jamal, sentenced to death for killing a police officer, in his successful fight for life.  (Abu-Jamal is now serving a life without possibility of parole sentence.)   Bob Casey, a Democratic Senator from Pennsylvania, paid lip service to “respect[ing] that our system of law ensures the right of all citizens to legal representation no matter how heinous the crime" but added the disturbing non sequitur that "it is important that we ensure that Pennsylvanians and citizens across the country have full confidence in their public representatives — both elected and appointed.”  Republican Senator Lindsay Graham, defending Adegbile's rejection by the Senate, was more direct:  “When someone has a history of helping cop-killers, this is what happens.”

Then there was the offensive campaign ad sponsored by the Republican Governors Association (RGA), entitled "Vincent Sheehan Protects Criminals, Not South Carolina." Sheehan was running for Governor against Republican incumbent, Nikki Haley.  He was described in the ad  as "trial lawyer" who "made money off criminals" and "got a sex offender out of jail time."  Indeed, he was actually paid for defending “violent criminals who abused women.”  Can you imagine?

What I can't imagine is that any reasonable person would disagree that it is critical to our legal system to ensure that all criminal defendants have effective advocates.  But as President Obama is looking for an unassailable candidate for the Supreme Court to highlight the Republican Party's anticipated obstruction, it is deeply troubling that someone like Judge Kelly  -- who after Harvard Law School and two prestigious federal clerkships, chose not to take her formidable legal skills to a high-powered law firm but instead committed herself to the less far lucrative, time-honored tradition of representing the despised -- is being assailed. 

Friday, March 11, 2016

Note To Hillary: Stop Alienating The Left

As I've written before, my admiration for Bernie Sanders and what he stands for goes back decades, but I fear that in a general election the well-honed, well-financed right wing attack machine will launch a shock and awe red baiting campaign against this socialist Jew that would drown out his ideas and undermine his candidacy.  Given the stakes in this election -- particularly, the Supreme Court -- electability trumps (pun intended) everything.  And so, I've have made my peace with Hillary Clinton because, despite her many flaws, I believe she best appeals to the diverse core constituencies that will ensure a Democratic victory in November.  But her flaws, unfortunately, continue to frustrate and, unless she changes her approach, are likely to alienate one key constituency -- progressives.

While Hillary has thankfully (and credibly) adopted many progressive positions, in no small part due to Bernie's challenge from the left, she remains remarkably tone deaf when it comes to the progressive community.
She must stop attacking Bernie's integrity and his voting record as somehow less than progressive.  This does nothing to shake Bernie's progressive supporters and only furthers a narrative that she is less than honest and will say anything to get elected.  It is perfectly appropriate to argue that many of his proposals -- such as single payer health care and college free tuition -- are unrealistic, and that she has better, more practical policy ideas.  It is fine to ask what specific plans he has to get Big Money out of politics (particularly given his comment that "any Supreme Court nominee of mine will make overturning Citizens United one of their first decisions," which makes no sense).  It is even ok to make the argument that Bernie is not as electable as she is.  But parsing Bernie's votes just makes her look disingenuous. Voting on bills in Congress invariably involves difficult choices about legislation that includes some good, some bad and some ugly.  It is unseemly to criticize Bernie for voting for a good bill that contained some bad and ugly sections or rejecting a bill that, in his view, contained too much that was bad and ugly.

And she's got to stop fawning over Republican icons.  Hillary has repeatedly touted her friendship with and admiration for Henry Kissinger, one of the most villainous U.S. political leaders of the 20th Century.  His role in the Viet Nam War alone, from undermining the Paris peace talks prior to Nixon's election to directing the massive clandestine bombing campaign in Laos and Cambodia, which indiscriminately killed and displaced millions of civilians, should be enough to disqualify Kissinger from polite company, much less make him a sought-after foreign policy consultant.  Apart from Hillary's close relationship with him -- which is troubling enough -- the fact that she felt compelled to name check Kissinger during the debates shows a disturbing disconnect with the left. 

Then today, in the context of Nancy Reagan's death, Hillary praised the Reagans for starting a "national conversation" about HIV/AIDS.  This is as mind boggling as it is offensive.  It is beyond dispute that President Reagan did nothing and said nothing while the AIDS epidemic became a national and international health crisis.  Despite the desperate need for federal funding and research, as well as leadership to quell the homophobic reaction to the disease, the Reagans remained silent.  By the time President Reagan ultimately addressed the issue of AIDS in 1987, towards the end of his presidency, over 36,000 had been diagnosed with AIDS and almost 21,000 people had died.  This was one of the most despicable aspects of his despicable presidency.

Hillary has since claimed that she misspoke about the Reagans' record on HIV/AIDS, but what was she thinking?  And why does she continue to say things that are undoubtedly going to alienate voters that she is going to need in November?  This is a burning (berning?) question.

Tuesday, March 8, 2016

Three Easy Steps For Democrats

The Republican Party is trying to cope with the overtly racist, xenophobic, misogynist, homophobic, climate-change-denying chickens that have come home not only to roost, but to crap all over the GOP Establishment.  Many high powered Republicans are threatening to bolt the Party or at least disavow Donald Trump, their Party's current frontrunner.  The most realistic alternative is the universally loathed Ted Cruz.  There is talk of a brokered convention that could result in a Party-shattering bloodbath and a possible third party challenge.  Meanwhile, particularly if Trump becomes the nominee, Republican candidates for Congress will have to decide whether to support him or run away from him, and thereby alienating either independents who will instead vote for Democrats or Trump supporters who will instead burn crosses. 

This fracturing of the Grand Old Party provides the Democrats with an incredible opportunity to restore some measure of sanity -- and humanity -- to the country's political institutions.  They have a chance to win the Presidency, reclaim a majority in the Senate, and reshape a Supreme Court that has been a conservative sinkhole for decades.  But being Democrats, they are equally likely to screw things up with their preternatural inclination to avoid partisan confrontation, move to the center, and misread the zeitgeist. 

I am not a political consultant, but I play one in the blogosphere.  And in that role, I want to suggest three inter-related steps that the Democrats must take to ensure a progressive victory in November and beyond.

1.  Supreme Court Matters.  President Obama must nominate an indisputably qualified, left-of-center candidate for the Supreme Court -- and soon.  One potential candidate, who is reportedly being vetted by the White House, is Judge Jane Kelly.  She is a former public defender from Iowa with a compelling life story.  Kelly currently sits on the U.S. Court of Appeals for the Eighth Circuit, having been confirmed by the Senate in a 96-0 vote.  What makes her particularly attractive is the way her nomination will discomfort Senator Charles Grassley, the current Republican Chair of the Judiciary Committee and the ugly face of the obstructionist right, who strongly backed her confirmation to the federal bench in 2013.  

The inevitable Republican refusal to hold confirmation hearings for such an otherwise  unassailable Supreme Court nominee must then become a major political issue.  Obama should hammer the Republicans daily for their unprecedented refusal to abide by the Constitution and exercise their duty to give "advice and consent. Senate Democrats should hold their own mock confirmation hearings if the Republicans won't do their job.  This should be treated like Ted Koppel-style hostage crisis reporting (e.g., "This is Day 57 of the Republicans failure to hold confirmation hearings"). Democratic presidential and senate candidates must make this a central aspect of their campaigns, asking whether We the People really want Donald Trump (or Ted Cruz, for that matter) to choose the next several Supreme Court Justices.

Not only will this provide a perfect vehicle to illustrate Republican obstruction and hypocrisy, but it would shed a critical light on what should be a key election issue.  Democrats need to stress that a liberal majority on the Court can make an enormous difference in people's lives and what horrifying consequences are in store if a conservative majority is restored and then solidified.  It needs to be stressed over and over how the Court can be transformed from the most corporate-friendly court since the 1930s to one that is far less deferential to polluters and Wall Street fraudsters, and far more protective of women's health and reproductive rights, privacy, voting rights, labor and civil rights.  Citizens United and other unprincipled decisions of recent terms can be overturned.

2.  Stay to the Left.  Bernie Sanders' campaign has obviously resonated with a wide range of committed, enthusiastic voters and tapped into legitimate anger and frustration about the current state of our politics.  There is no question that he has moved the Party -- and Hillary Clinton -- to the left.  It wasn't that long ago that Democrats were afraid of being dubbed "Liberal," and now, thanks to Bernie, the two candidates are fighting over who is the true Progressive.  His calls for changing a rigged, corrupt political system and fighting the inequality it has engendered need to continue to be a critical aspect of a Democratic campaign no matter who is nominated. At the same time, the Democrats must confront and address issues uniquely faced by people of color whose support is absolutely necessary for a victory in November.  And they must focus on convincing women voters, including those unaffiliated with either political party, that their health, privacy, reproductive rights, and economic well-being will be at risk if a Republican wins the presidency.

(On a related note, Hillary and Bernie need to insist that Debbie Wasserman Schultz be removed as the head of the Democratic National Committee immediately. She has been an absolute disaster for the Party, and, as a shill for Wall Street, she is the exact wrong person to be hosting the Convention.  Her latest inexcusable stunt is the co-sponsoring a bill to delay and gut implementation of regulations developed by the Elizabeth Warren-created Consumer Financial Protection Bureau that would crack down on usurious payday lenders who prey on the poor.)

3.  Fear Itself.  It seems likely that Donald Trump will be the Republican Party's nominee, but we could end up with one of the other candidates who, with the exception of Ted Cruz, only seem less frightening by comparison.  But all of them are extreme right wing zealots -- and the Democrats need to scare the shit out of the public by explaining what this country would look like if they took power.  Racism, religious intolerance and misogyny have long been pillars of Republican orthodoxy but they are no longer shrouded in coded language and dog whistles. This makes it far easier expose the Republicans for what they really stand for.

Voters need to realize that the leading Republican candidates have little respect for or understanding of the Constitution -- they intend to round up immigrants and Muslims, build a wall on our southern border, engage in torture and other war crimes, and essentially create a White Christian Nation.  Seriously.  In addition, they all maintain extreme positions on abortion rights -- some more extreme than others -- and their Party's relentless war on women's health would only be ratcheted up by a far right Supreme Court majority that would certainly overturn Roe v. Wade.  Then there's their contempt for science and stubborn refusal to accept the reality of climate change, their promise to repeal Obamacare without an alternate plan to provide health care beyond the availability of emergency rooms, and their cynical economic plans that mainstream economists conclude will create enormous tax breaks for the wealthy while exploding the deficit.

The truly frightening world view and policy positions of Trump, Cruz and their cohorts are so far being drowned out by the posturing, rhetoric and sophomoric insults that seem to comprise the sum total of Republican debate.  As we laugh at how crazy it is that these fuckers have actually resorted to dick jokes, we are in danger of losing sight of how dangerous they really are.
The roadmap for Democrats is pretty simple:  1) The Supreme Court; 2) A Progressive Platform; and 3) Fear.  Don't blow it.

[Related posts:  Justice Scalia Has Left The Building; Public Defender for Justice; Republicans Will Not Release Their Stranglehold On The Supreme Court; Schadenfreude Tinged With Fear As The GOP Devolves Into The Party Of Trump]

Monday, February 29, 2016

Schadenfreude Tinged With Fear As The GOP Devolves Into The Party Of Trump

Most likely hurt and disappointed that neither of them were endorsed by David Duke, the former KKK Grand Wizard himself, Marco Rubio and Ted Cruz both condemned Donald Trump for not immediately disavowing Duke and the Ku Klux Klan.  That appears to be the kind of close question that separates the candidates in today's GOP -- whether or not to overtly accept support from the KKK.

Trump's obtuse response to Duke's warning to European Americans that a vote against Trump is "really treason to your heritage" was just one highlight from a week that included his threats to sue the media that showed a frightening misunderstanding of the First Amendment and tweets that proudly quoted his obvious role model, Benito Mussolini.

Despite the faux outrage from Rubio and Cruz about the Duke endorsement, both indicated they would nevertheless support Trump if he were to win the Republican nomination.  Sure he may be a mean-spirited, megalomaniacal racist clown, but he is a Republican and that's good enough for them.

It has been enormously satisfying to watch the endangered species formerly known as mainstream Republicans freaking out as they belatedly realize that their Party has been taken over by a vulgar talking yam, as Charles Pierce has brilliantly dubbed him.  They act as if Trump came out of nowhere, as if the anti-intellectual, anti-government, boorish, jingoistic demagoguery spewed by Bush/Cheney and then VP-candidate Sarah Palin and now Trump isn't all of a piece. They remain blithely unaware that they have enabled and capitalized on the irrational and racially-inspired Obama hatred, Tea Party craziness and knee-jerk obstruction that has consumed the Republicans these past seven years, leaving them with a great big pile of shit that a growing number of their constituents think is ambrosia.

Meanwhile, their last, great hope to defeat Trump is Marco Rubio, who, let's not forget is a Tea Partier himself.  They are vainly trying to prop up this incredible political lightweight who has so little to work with that he is resorting to juvenile jokes about Trump wetting his pants during the last debate and insinuating how Trump's small hands reflect on his manhood. 

It is mostly fun, but more than a little bit scary, to think about what will happen if Trump wins the nomination.  Hopefully it would motivate and inspire Democrats, Independents and most sentient beings to get out the vote to defeat him.  Even the most diehard Hillary-haters and Nader deadenders could not possibly underestimate the unmitigated danger of a Trump Presidency. 

And the Republicans?  Will the Party establishment get in line and reluctantly support Trump as the perceived lesser of evils?  Surely many will, although not with either the enthusiasm or unanimity a party's candidate would hope for.  And an unraveling of what has long been -- particularly in contrast to the Democrats -- a cohesive, consistent political structure could be devastating.  Think about how the Trump and the Republican establishment will reach consensus on a party platform.  More importantly, there are several vulnerable Republican Senate candidates running in blue and purplish states.  Will they campaign alongside their Party's nominee and possibly alienate independents and more moderate (rational) conservatives or will they endeavor to keep Trump at a respectful -- or disrespectful distance.  Either way, it is sure to be a painfully awkward dance and provides the Democrats with a golden opportunity to win back the Senate as well as the Presidency -- and then let the Republicans try to block a Supreme Court nominee.  (But I'm getting way ahead of myself) 

Watching the Republican Party implode and become the Party of Trump is like watching a spectacular, but slow-moving train wreck. It is grotesque but at the same time it is hard to turn away.  The ultimate question, as it screeches off the rails and crashes into a fiery mess, is whether it will destroy just the Republican Party or take the whole country down with it.

Monday, February 22, 2016

A Public Defender For Justice

The typical path to becoming a federal judge is to have been a prosecutor and/or a big firm lawyer representing corporate interests.  This is true whether the president is Democrat or Republican.  Indeed, while President Obama can rightfully boast about the diversity of his federal court appointments in terms of race, gender and sexual orientation, it is troubling that roughly 85% of his federal court nominees have been corporate attorneys, prosecutors or both

In addition, according to an Alliance for Justice report published last year:
  • Fewer than four percent of President Obama’s judicial nominees have worked as lawyers at public interest organizations;
  • Fewer than four percent have significant experience representing workers in labor and employment disputes;
  • Prosecutors outnumber public defenders (state or federal) by more than three to one;
  • Only four out of 56 circuit nominees have worked as a public defender (state or federal), compared to 21 who have worked as prosecutors.
  • .
    Lawyers who have represented criminal defendants, who have challenged the power of the government, who have fought violations of human rights and civil rights, and who have taken on Big Business, bring a critical perspective about challenges facing the most vulnerable in our society, and about the inherent biases in the legal system against the poor and people of color and those accused of crime, who are often both. 

    Countless legal determinations require applying a "reasonableness" standard -- what a reasonable person would do or understand -- or deciding whether a particular claim is "plausible."  Such judgments are necessarily filtered through one's personal and professional experiences.  Thus, as Sen. Elizabeth Warren has explained:  “It matters that someone has represented people other than corporate clients, that they’ve had real experience with people who can’t afford lawyers, that they’ve had real experience trying to fight for the public interest …. It matters where you come from.”

    This is a perspective that is sorely missing on the Supreme Court.  Even so, Supreme Court watchers who bandy about qualified nominees to replace Justice Scalia rarely mention the host of brilliant candidates with experience as public defenders or public interest lawyers.

    A article appearing in the National Association for Public Defense provides an impeccable list that begins with a perfect choice:  Bryan Stevenson:
    Stevenson, 56, is our country’s greatest human rights lawyer. Stevenson is the founder and head of the Equal Justice Initiative, fighting poverty and challenging racial discrimination in the criminal justice system for 30 years. He has successfully argued in the Supreme Court, including this January’s decision striking down mandatory life-without-parole sentences for children. Stevenson speaks eloquently about America’s troubled history of racial strife and injustice, and about how to heal the wounds of that history. President Obama selected Stevenson to serve on last year’s Task Force on 21st Century Policing.
    The NAPD piece provides several other stellar candidates, including practicing lawyers (Lisa Feeland, David Singleton, Christine Swarns) law professors (Ronald Sullivan, James Forman, Michelle Alexander) and federal appellate judges (Robert Wilkins, Jane Kelly). 

    It goes without saying that no matter who President Obama chooses to replace Justice Scalia, he or she will be met with unprecedented obstruction from the Republican-led Senate given that anyone to the left of Justice Kennedy will dramatically shift the Court's ideological balance and provide a liberal majority for the first time since the early 1970s.  But that shouldn't stop Obama from choosing a candidate who has devoted a legal career to fighting for justice rather than for power. 

    Friday, February 19, 2016

    Leading Republican Candidates In A Nutshell

    All hat, no cattle
    All hate, no cattle
    All hair, no cattle

    Thursday, February 18, 2016

    Hope Springs Eternal

    Cue the Ken Burns music.  Spring training, like spring itself, is a time of renewal and rebirth; a time when even the lowliest team has hope for the season ahead.  Critical trades over the winter have bolstered the team's weaknesses.  Players coming off injury-plagued seasons are returning in the best shape of their careers.  Hitters have corrected the flaws in their swing and pitchers have discovered devastating new pitches.  It may be hackneyed and trite, but I buy it every year.

    As a Met fan, for most of the last decade or three, after enduring yet another dismal season filled with heartbreaking losses, underachieving performances, devastating injuries, and mind-boggling player moves or non-moves, I would nevertheless approach Spring Training with a na├»ve optimism that would endure at least until Opening Day. 

    I would then delude myself through much of a hopeless baseball season that my team could pull it together and make a run for the playoffs down the stretch.  I refused to face reality until sometime in August, when forced to accept the inevitability of a losing season, I would be stuck watching a team play uninspiring baseball for the last month or so, with little to root for other than spoiling another team's playoff run and the individual achievements of favorite players.  With a team going nowhere, much of the luster and lyricism of the game was lost -- at least until the spring, when it all began again.

    But last year was different.  I experienced how beautiful baseball can be when your team is having a good year, when you get to revel in tension-filled, meaningful games in September, followed by the glorious excitement of the post-season.

    After seven straight years with a losing record, preceded by two historic collapses, which were themselves preceded by a heartbreaking playoff loss and countless other frustrating seasons, the New York Mets made it to the World Series, transforming what looked to be another dismal year of mediocrity into a joyful one filled with magical, unforgettable moments.

    As I wrote after the season, it could be that we are on the verge of a new Mets' narrative
    For Met fans, there is always a lingering sense that disappointment is not far off -- that the Mets' penny-wise owners will not do what it takes to keep the team competitive and that something unexpected but nevertheless devastating will undermine the team's seemingly limitless future.  But, things feel different this time.  The Mets have a deep core of great young talent, savvy veterans, and apparently great chemistry They surely need to make a few changes and add some key new pieces this off season, but maybe, just maybe, this is the start of a new era.  Maybe it is time for a new narrative.  Not lovable losers or unlovable losers tempered by the occasional miracle, but a truly solid baseball team that doesn't have to rely on magic to win.
    Indeed, during the off season, Mets' ownership made some remarkably deft moves -- letting Daniel Murphy go and replacing him at second with the very solid Neil Walker; acquiring Asdrubal Cabrera to play short to allow Mets' folk hero Wilmer Flores to play more of a utility role for which he is well suited; and, most important of all, signing last year's star catalyst Yoenis Cespedes to anchor the batting order. 

    While it is true that I can't help but get excited for Spring Training every year, there hasn't been a season since the late 1980s when I have been this excited about my team's prospects.  No more cautious optimism -- I'm all in on the new Met narrative.  Sure, with such high expectations comes the risk of even greater disappointment. But, after all, it is still only Spring.  And, as the late, great Joaquin Andujar summed up the beauty of baseball, as he put it, "in one word:  you never know."

    Tuesday, February 16, 2016

    Republicans Will Not Release Their Stranglehold On The Supreme Court (Ever) Without A Fight

    Relying on hypocritical, ahistorical, patently bogus rationalizations, the Republicans will not allow President Obama to appoint a Supreme Court justice to replace the recently-departed Antonin Scalia, and flip the Court from a conservative one to a liberal one.  What should also be clear is that as long as they control the Senate, Republicans won't let the next Democratic president do so either. 

    Unlike Democrats, who by and large believe in democratic rule -- i.e., legislative solutions to governing -- Republicans rely on a gerrymandered House of Representatives and a conservative Supreme Court to obstruct liberal initiatives and ensure that their own unpopular policy positions are enacted or upheld -- from allowing unfettered campaign contributions and unrestricted gun rights to gutting environmental regulations and impeding reproductive rights.  And so, they have aggressively and successfully agitated for a conservative federal judiciary for decades -- and they will not release their stranglehold on the high court without a bitter and prolonged fight.

    President Richard Nixon's appointments to the Supreme Court, notably Warren Burger, William Rehnquist and Lewis Powell (he also appointed Harry Blackmun) put an end to the liberal Warren Court, and ushered in a conservative majority that ever since has been increasingly more favorable to corporations, law enforcement, landowners and gun owners, and more skeptical to voting rights, civil rights, reproductive rights and LGBT rights.  And while there have been a few critical victories for liberals over the last few decades, the conservatives have long been in firm control of the Supreme Court.

    And there you have the basis for the right wing apoplexy on contemplating Scalia's replacement.  Imagine what the Court would look like if Scalia's seat is taken by a liberal-leaning justice.  Suddenly, Justice Kennedy, the conservative Reagan appointee who occasionally votes with the liberal bloc, will no longer be the coveted swing vote.  That role will go to Justice Breyer, a left-of-center Clinton appointee.  And just like that, right wing fevered dreams of overturning Roe v. Wade,  eliminating the concept of one person one vote, sabotaging Obamacare, destroying the financial capability of labor unions, and restoring the ban on same sex marriages would be gone. 

    So Republicans have come up with ludicrous justifications for thwarting the next nominee, whoever it may be.  First, there is the argument that a justice should not be confirmed during an election year.  Except 14 justices were confirmed in election years, including Justice Kennedy, who was unanimously confirmed in the last year of President Reagan's second term by a Democratic majority.

    Then there is the idea floated by some that any nominee to replace Scalia should be a like-minded conservative.  Tell this to the first President Bush, who replaced Thurgood Marshall with Clarence Thomas.

    Most recently, the constitutionally-challenged Rand Paul has argued that Obama should not be permitted to appoint a Supreme Court justice because he has a conflict of interest. 

    Finally, of course, there is the Bork excuse.  Republicans like to argue that it was the Democratic Party that started politicizing Supreme Court nominations when they defeated Reagan's nomination of Robert Bork to replace Lewis Powell in 1987.  But Bork was no mere conservative.  He was a radical jurist whose views on the federal role in protecting civil rights, voting rights and reproductive rights were quite far outside the mainstream.  Importantly, while his nomination was scuttled after an incredibly contentious confirmation hearing (with 6 Republicans voting against him, by the way), Reagan's subsequent appointees -- Kennedy (who was nominated after Bork's defeat) and Scalia -- were confirmed, as were the extremely conservative nominations of the two presidents Bush. 

    Even if Senate Republicans deign to fulfill the letter of their constitutional responsibilities by holding hearings on Obama's nomination(s) or those of his successor, it is hard to imagine the current Republican Senate approving any nomination that is left of the current swing justice, Justice Kennedy, under any circumstances -- an obstructionist position that has no historical precedent.

    And keep in mind that not only is there one current vacancy to fill, but there soon may be more. Justice Ginsburg is 82, Kennedy is 79 and Breyer is 78. 

    If Hillary Clinton or Bernie Sanders wins the presidency, the Democrats would theoretically have a chance to maintain a liberal majority on the Court for a generation or more.  (Conversely, a Republican president would take us back to the Dark Ages -- or at least the pre-New Deal 1930s -- for the foreseeable future.)  But Republicans have shown throughout the Obama Presidency that they will go to whatever lengths are necessary to thwart any hint of a perceived liberal agenda -- and they have rarely paid the price.  Their base loves it, the mainstream press ignores it, and the Democrats seem unable to do more than whine.

    The only way to stop the Republicans from preventing a long overdue shift in the Court's balance of power is to elect a Democratic president AND ensure a majority of Democrats in the Senate.  This makes the battle for the presidency more important than ever.  But don't forget the Senate where the Democrats need to pick up at least four seats.  There appear to be six seats currently held by Republicans that are within reach --Wisconsin, New Hampshire, Illinois, Ohio, Florida and Pennsylvania.  (Colorado and Nevada, currently held by Democrats, are also in play.)  Let's get to work.