Kelly Ayotte

The Play on the Scalia Replacement: Remember the Lame Duck

Within minutes after the public announcement of Antonin Scalia’s death, Senator Mike Lee’s flack Conn Carroll started predicting Obama would have zero chance of successfully naming a successor. After Carroll, one after another actual Senator followed that sentiment, including Chuck Grassley and Mitch McConnell, both of whom would have the ability to stall any Obama nominee. From that point, the GOP was pretty much committed, they said, to preventing any Obama nominee from being confirmed.

That led to a bunch of bad comparisons — between judges like Robert Bork who was rejected and Miguel Estrada who never got a vote — and simply going a year without acting on a President’s nominee. Even the comparison with Anthony Kennedy (who was nominated in November after two other nominees, including Bork, failed) is inapt, as he was nominated earlier than any Obama pick would be (though in a sense that fetishizes the year that would pass without a nominee).

I, like bmaz, believe Obama will pick someone fairly centrist, probably someone who has been recently confirmed by big margins.  I agree the most likely nominee will be Sri Srinivasan, who in 2013 was confirmed to the DC Circuit with a 97-0 vote — though I’m also mindful of the wisdom (given the GOP unanimity about obstructing this nominee) of picking someone who drive Democratic turnout — an African-American woman, for example. Though I highly doubt Obama will nominate Loretta Lynch, as some have suggested, not least because the fight over releasing data on HSBC’s continued money laundering will draw more attention as it moves toward appeal, which might focus attention on her role in administering the wrist slap in the face of egregious drug cartel and terrorist supporting money laundering.

After some reflection, some conservatives have suggested that the GOP would have been better served if they had simply not managed to pass Obama’s nominee, rather than making such a big stink about it.

I think that ignores how much both parties look forward to using this nominee to drive turnout — and regardless of who the respective nominees are, the GOP have a much bigger challenge in getting enough voters to turn out to elect a GOP president in November, so I’m sure they’re quite happy to have an issue that (they presumably hope) might flip some conservative Latino votes — though one likely outcome of an extended 8-member court is that the Fifth Circuit’s ruling staying Obama’s immigration orders will be upheld after a 4-4 tie on the court, which might have the opposite effect.

Furthermore, I think it ignores one other factor. Srinivasan has been predicted to be Obama’s most likely SCOTUS appointment for almost 3 years (few people consider how such predictions might have influenced Ruth Bader Ginsburg’s decision not to retire). The Republicans probably presume he’s the most likely candidate as well.

The presumption Srinivasan — or someone similar — would be the nominee easily justifies the GOP’s immediate promise they won’t confirm a nominee. That’s because they need to explain why someone they just overwhelmingly confirmed, someone who faced more opposition from the left than the right, suddenly became unacceptable.

More importantly, I presume the GOP wants to keep open the possibility of confirming Srinivasan or whatever centrist Obama appoints during the Lame Duck. Here’s why:

Barring any replay of Bush v. Gore, both sides will know on November 9 who would get to pick Scalia’s replacement if Obama’s pick failed. Both sides will also know the makeup of the Senate. Because of the demographic issues I mentioned earlier, the likely Democratic nominee, Hillary Clinton, is most likely to win. That’s not to say I think she’s necessarily the strongest candidate — even ignoring the potential the email scandal will taint close advisors like Huma Abedin or Jake Sullivan, I think it likely the economy will be crashing by November in a way that would favor Trump if he were the GOP nominee facing Hillary. But I think electoral demographics suggest the GOP will have a harder time winning this year, particularly after a year of Trump branding the GOP with bigotry.

Plus (ignoring my suspicion the economy will be crashing by November), we’re likely to have a more Democratic Senate after November. Harry Reid is the only retiring Democrat where the replacement race is currently perceived to be toss-up, whereas Marco Rubio, Mark Kirk, Kelly Ayotte, and Ron Johnson are all deemed to be likely toss-ups, if not Dem-favorable. It’s still most likely the GOP will have a slight majority, but a smaller one, in the Senate, one where people like Susan Collins could make more of a difference. But it is likely to be more Democratic.

If Hillary wins (the most likely outcome) and Democrats win the Senate (unlikely, but feasible), then the Republicans will have good reason to want to confirm an Obama nominee perceived to be centrist. Whereas Srinivasan looks far worse than Scalia to the Republicans, he would all of a sudden look far preferable to a Hillary choice with the time to wait out the Senate. The GOP would have time between November 9 and the Christmas break to confirm whatever Obama nominee has been languishing.

In other words, I think the GOP have provided a way to stall someone (like Srinivasan) they have recently confirmed, while leaving the possibility of confirming that person if November makes it likely the next nominee will be more liberal.

One more thing: Commentary on this process has presumed that McConnell and Grassley (and Obama) learned of Scalia’s death when we all did. I would hope that Obama, at least, got word well before that, particularly given the involvement of at least the US Marshals and according to some reports the FBI. But I also wouldn’t leave out the possibility that one of the 39 other still unidentified guests at the ranch this weekend gave the Republican leadership a heads up as soon as a hearse showed up. So it’s possible that what looked like quick knee-jerk response on the part of Republican leadership was instead more considered, along the lines I’ve just laid out.

One Truth the GOP Did Tell: They Want You To Work For Yourself

Amid a flood of lies being uttered at the Republican National Convention this week, there is one truth the GOP has told.

They want you to work for yourself.

The Republican obsession with working for yourself stems from a campaign strategy–to recruit a parade of people–many of them whose businesses suck at the government teatto “refute” an Obama quote they’re taking out of context, “You didn’t build that”

Here’s how Paul Ryan claimed credit to building a business (he didn’t mention it was made possible by Social Security survivor benefits.

My Mom started a small business, and I’ve seen what it takes. Mom was 50 when my Dad died. She got on a bus every weekday for years, and rode 40 miles each morning to Madison. She earned a new degree and learned new skills to start her small business. It wasn’t just a new livelihood. It was a new life. And it transformed my Mom from a widow in grief to a small businesswoman whose happiness wasn’t just in the past. Her work gave her hope. It made our family proud. And to this day, my Mom is my role model.

But the most absurd case came from Senator, former NH Attorney General, prosecutor, and before that private practice lawyer Kelly Ayotte, who instead of talking about her considerable and impressive professional experience, focused on shoveling snow. (This served the other apparent convention strategy to have all women, save Condi Rice, to define themselves first and foremost as wife and/or mother.)

My husband Joe – who was on track to be a commercial pilot – instead served our great country flying combat missions in Iraq.

When he returned home from the war – he found himself in the same position as so many Americans – he needed a job.

So he started a family business – a landscaping and snowplowing company.

And when I say he – I mean we – because I spent many a sleepless night shoveling snow. And I’m proud of the fact that in addition to being a United States Senator – I’m also pretty good with a snow plow!

Now, Ayotte’s husband Joe Daley’s story could have served any of several narratives. His military service itself. The declining opportunities for airline pilots, an industry repeatedly bailed out by government. The difficult job market for veterans. But instead it became a story about an Attorney making $174,000 a year for her day job in public service plowing snow.

But it’s not just Ayotte’s admirable career in public service that gets short shrift here. While many of the speakers talked about how many employees their small business supported, no one I saw–save Condi Rice, who rightly celebrated her success rising from segregated Birmingham to become Secretary of State–talked about the honor of working as an employee, whether as a public servant or in the private sector.

That points to several larger trend that fits well with the real thrust of the policies Mitt and Ryan would implement. First, the Bain-like stripping of real employment relationships in exchange for transient, insecure contracts. The denial of responsibility anytime a contractor makes a mistake. And perhaps most importantly, a tax system that values wealth creation over work.

The RNC is all about these American Dream stories, and a few of them are actually what they appear to be, stories about entrepreneurs building something of their own with little help from the government. But this is about the value of working hard to own things, not work itself.

Lisa Murkowski Admits She Voted To Help Catholic Church Enforce a Doctrine She Ignores

As I noted last week, every single Catholic Senator save Susan Collins who voted for the Blunt Amendment last week appears likely to have relied on the birth control their Church prohibits to limit the size of their families. Lisa Murkowski, who has just 2 kids, was among the 10 Catholics who was using her position to help the Catholic Church enforce a doctrine she herself has ignored.

And in an interview claiming she now regrets that vote, Murkowski as much as admits that’s what she did. (h/t TPM)

What Lisa Murkowski told me I already suspected. She’s a moderate. She supports abortion rights and contraception coverage. She also doesn’t line up completely with the Catholic Church when it comes to birth control. She regretted her recent vote.

[snip]

I pointed out that her support for birth control conflicts with the Catholic mandate against it.

“You know, I don’t adhere to all of the tenets of my faith.

Now, she’s still spinning her vote (and her letter opposing Obama’s rule on contraception) as one in favor of religious freedom.

She’d meant to make a statement about religious freedom, she said, but voters read it as a vote against contraception coverage for women.

But it is not “religious freedom” to craft laws to help the Church enforce mandates that almost none of its adherents–and probably few, if any, of the Catholic Senators supporting the law–abide by. It is an improper use of government to aid a religious institution.

Not to mention, rank hypocrisy.

Most Blunt Amendment Supporters Likely to Have Used Birth Control

I confess. I’m contemplating calling all the Senators who voted for the Blunt Amendment yesterday to ask for a statement detailing:

  • What the Senators’ history of reproductive choice has been, including details on what kinds of birth control they’ve used and who paid for it
  • Whether the Senators (or their spouses) have used erectile dysfunction drugs, and who paid for it

Mind you, I think such questions are inappropriate. But given that 48 Senators–including 3 Democrats and 4 women–voted yesterday to say that employers should have really intrusive control over their employees’ healthcare decisions (including, but in no way limited, to reproductive health), it seems fair to at least inquire whether these men and women have been relying on birth control to plan their families, whether their use of birth control violates their religion’s stated doctrine, and whether taxpayers paid for birth control during their child-bearing years.

As you can see from the list below, the vast majority of Senators who voted for the Blunt Amendment are likely to have relied on birth control or sterilization to limit their family size. Just three–Susan Collins, Kay Bailey Hutchison, and Lindsey Graham–have no biological children. And just three–Mike Crapo (5), Chuck Grassley (5), and Orrin Hatch (6)–have more than 4 biological children (McCain and Blunt have more with their adopted kids). Of those likely to have used birth control or sterilization, 22 worked for local, state, or federal government during a roughly calculated “child-bearing” period of their life, meaning taxpayers may have paid for their birth control (though of course their spouses’ employers may have provided health care, too). Of those likely to have used more than the rhythm method, 10 are Catholic.

So I’m going to contemplate this over the weekend. But for the moment, consider that the great majority of the Senators who voted to let employers restrict birth control access seem to have families that have been shaped by birth control.

Note the following details are a first draft–please let me know of any inaccuracies.

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Ayotte’s Pro-Torture Amendment Referred to Conference

Update: Adam Serwer informs me that I misunderstood what happened in the colloquy where this was discussed. Ayotte’s pro-torture amendment was withdrawn.

I apologize for my error.

As Jeff Kaye laid out here, Kelly Ayotte submitted an amendment to the Defense Authorization that would override Obama’s Executive Order eliminating torture (the language of the amendment is below).

I had thought the amendment would get a vote, be easily defeated, and be history.

But instead, the amendment got referred to the conference that will work out differences between the House and Senate bills.

Now, normally, I’d assume this is a convenient way to get rid of it. But given that the amendment would presumably have been voted down by the Senate, I worry that this effectively keeps it alive to be put in the larger package. Then, members of the House and Senate will vote for the whole package (not wanting to defeat the whole defense authorization). Who knows, maybe they’ll stick it in the classified section of the bill, so none of us will be able to prove that our members of Congress are voting for torture?

Such decisions get made by the sponsor of a bill–in this case, Carl Levin. And they rarely get made without the assent of the Administration.

While it’s not clear what will happen to Ayotte’s amendment–and to our brief efforts to stop torturing–the fact that it won’t be defeated by a upperdown vote bodes ill.

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