25 Feb

Obama appointing a new justice could work, but probably won’t

Bob Packwood, who voted on 16 Supreme Court nominations during his time representing Oregon in the U.S. Senate, thinks there is a way of preventing Antonin Scalia’s death from leaving an empty Supreme Court parking space for at least a year.

It involves President Obama negotiating the nomination he says he’s determined to make with the Republicans who control the Senate, the ones who’ve said they won’t consider anyone sent over by a Democratic president with a year left in his term.

“I find it hard to believe that in the entire United States,” says Packwood, “you can’t find a judge acceptable to a majority of both Republicans and Democrats.”

That would mean Obama dropping hopes of naming the kind of justice he would ideally want, and Republican senators dropping the dream of keeping the vacant seat to be filled by President Trump, presumably in line with the choices he’s made on “Celebrity Apprentice.”

We’re in an unclear situation. The last Democratic president to send a Supreme Court nomination to a Republican-controlled Senate was Grover Cleveland, back when Republicans didn’t have to worry about being denounced on Fox News.

One hour after the announcement of Scalia’s death, Senate Majority Leader Mitch McConnell – the one who declared that his main objective in the Senate was to keep Obama from a second term – made an attempt to cut that term short, invoking a previously unknown tradition that of course a president can’t nominate a justice during his last year. Most Republican senators quickly agreed.

The leading GOP presidential candidates took a break from calling each other liars, threatening to sue each other and discussing Jeb Bush’s mother to demand that the Senate stonewall any Obama choice, although the argument is as close as most of them will ever get to a Supreme Court nomination.

Obama, meanwhile, announced that of course he would make a nomination. Sen. Ron Wyden called on the president and Senate to act with “urgency,” and Sen. Jeff Merkley urged everyone to act “quickly and thoughtfully.”
We’ve seen this kind of confrontation happen before. And as a result, we’ve seen nothing actually happen.

It’s now a complicated calculation for all the players. An appealing nomination ignored by the Republican Senate could make the Supreme Court and Republican obstruction an issue throughout this election year, which would not necessarily be to Republican advantage. Demonstrating the feelings involved, a black former state legislator in South Carolina suggested to The New York Times that Republicans were trying to limit Obama to three-fifths of a presidential term.

Besides, points out Packwood, “If Hillary wins the election, and the Democrats take the Senate, Republicans will be in worse shape than they are now.”

This may be why several Republican senators, including Judiciary Committee chairman Charles Grassley of Iowa, have suggested that maybe it wouldn’t hurt to hold some hearings if Obama makes an appointment they consider plausible – although on Thursday, Grassley seemed to back away from the idea.

On the other hand, you might wonder whether a high-level prospect for the Supreme Court, especially one who might appeal to a wide constituency, would want to sign up for a nomination process that these days resembles a months-long full-body colonoscopy – Sonia Sotomayor’s response just to the Judiciary Committee questionnaire was 5,000 pages long – with relatively little chance of confirmation at the end of it.

(Packwood’s not worried about that: “I’m sure he could find someone to do it, because just to say ‘I was nominated to the Supreme Court’ is an honor.”)

Prospects for an Obama-nominated judge at any level – let alone a nominee for the highest court – making it through the Republican Senate these days are not promising. As Catherine Rampell recently reported in The Washington Post, since the Republicans took over the Senate in January 2015, the Senate has confirmed only 11 judges, the fewest in that time period since 1960. It has confirmed just one appeals court judge, the fewest since 1953. During that time, the number of districts qualifying as “judicial emergencies,” meaning there weren’t enough sitting judges to handle the case load, rose from 12 to 31.

This may be a different time than Bob Packwood’s, not to say Grover Cleveland’s.

Moreover, the average time for a judge between nomination and conformation has been 283 days. So if Obama nominated someone this week, the best case for confirmation would be around Thanksgiving, when there would actually be a newly elected next president.

There are, as Packwood says, ways this could work out.

But in 2016 Washington, it probably won’t.

NOTE: This column appeared in The Sunday Oregonian, 2/21/16.

05 Feb

Legislature has a chance to deflect brutal November showdown

Last week Oregon produced a dramatic lesson, relevant not only where it happened, but clear across the state:

If you keep saying you’re ready for a violent showdown, you just might get it.

After two weeks of waving around guns and vowing to stand up to the feds to the end – and seriously creeping out the local residents that they claimed to be defending – the leaders of the Malheur occupation were taken by surprise and arrested by the FBI, and one of them was killed.

No matter what kind of warlike challenges he’d been issuing, it could not be considered a successful outcome for him.

Nobody in Salem, where the Legislature starts its off-year short session Monday, is brandishing high-powered rifles and declaring a willingness to stay there for months. But the state is heading for its own high-casualty showdown this fall, and every sign from the legislature shows a willingness to let it happen.

This November, Oregon is facing an explosive ballot, with two measures to increase the minimum wage – to $13.50 and $15 – along with IP28, a massive new gross receipts tax on businesses doing more than $25 million in business in Oregon. The measure would bring in $5 billion a biennium, increasing the state’s general fund by almost a third.

The projected battle this fall may be beyond anything automatic weapons can produce.

The legislature can’t keep anything off the ballot; that’s the whole point of initiatives. But it does have options.

“I’d rather see the legislature put an alternative on the ballot,” said Senate Majority Leader Ginny Burdick, D-Portland, in an interview last week. “We have a history of putting on moderate alternatives to carry the day.”

On the minimum wage, there is the prospect of an alternative. Gov. Kate Brown is offering an alternative plan, a sizable increase spread over six years, that might form a basis for a legislative approach.
But on the revenue issue, it’s hard to see an alternative path emerging.

“So far business and labor are not interested,” said Burdick. “They want to fight it out.”

The last time they got to fight it out was in 2010, over the business and upper-income tax increases Measures 66 and 67, which to some surprise passed – and it’s hard to imagine what Oregon schools would be like now if they hadn’t. That example encourages the sponsors of IP28, along with the prospect of a large presidential year turnout, and a considerable range of unions and other organizations supporting the measure and prepared to back a major campaign for passage.

There’s also the reality that Oregon’s schools and services are dramatically underfunded, and that the state has some of the lowest business taxes in the country.

On the other hand, IP28 is a considerably larger tax increase than Measure 66 and 67 together, and the campaign against it is likely to be larger and considerably more bitter than the earlier battle – which is still remembered painfully across the state. And neither Measure 66 nor Measure 67 passed by much – nor did the last publicly voted minimum wage increase in 2002.

There is no certainty of anything passing, and Oregon showing up in 2017 with no new revenue is an alarming prospect.

Monday, Sen. Mark Hass, D-Beaverton, chairman of the Senate Finance and Revenue Committee, presents his own proposal –also a gross receipts tax, bringing in much less money, about $1 billion a biennium. Hass sees it as an effort to “avoid this terribly nasty campaign ahead.”

Nobody thinks that the legislature could assemble an entire alternative revenue program in the 35 days of the short session. But it’s a while until July, and if the legislature made progress on an idea, it could return in the spring to finish. Even that might be implausible, as Republicans opposed to any tax increase and House Democrats backing IP28 might together create an impassible barrier to any effort to defuse the showdown.

“The business community is not interested. The unions are not interested. They both think they can win it,” Senate President Peter Courtney said Wednesday. “There will be a total civil war.”

Previously, Courtney forecast a rerun of Antietam, the bloodiest battle of the Civil War.

But at least Antietam had a winner.

So as the legislature meets, both sides are looking for a showdown to the finish. As we saw in eastern Oregon last week, if that’s what you call for, that may be what you get.

But it may not be the finish you want.

NOTE: This column appeared in The Sunday Oregonian, 1/31/16.