D.C. Memo: Dread Kennedy

Sam Brodey

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This week in Washington, narrow majorities on the U.S. Supreme Court issued rulings favorable to President Trump and the GOP, and the court’s long-time swing justice retired, giving Trump the chance to influence American law for a few generations. Democrats responded by re-litigating the entire 2016 election and pouring one out for Merrick Garland.

This week in Washington

Greetings from our nation’s capital, where we’ve had another dramatic, historic week in D.C. news and politics. Before we dive in, though, a quick plug: MinnPost depends on your support to keep going. If you appreciate the work we do — from our award-winning reporting on Minnesota issues to this snarky collection of news and bad takes — please consider becoming a MinnPost member.

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Onto the news, most of which this week was generated by the Supreme Court of the U.S. The overarching theme: elections have consequences. The court gave President Donald Trump and conservatives victories on two key cases thanks to the addition of Justice Neil Gorsuch to the high court last year. And on Wednesday, Justice Anthony Kennedy shocked Washington by announcing his retirement — giving Trump his second chance to select a Supreme Court justice in just 18 months. Barack Obama, by contrast, got two in eight years. (Three, technically — hi, Merrick Garland!)

This is being treated as nothing less than a massive earthquake in the worlds of politics and the law: while the very conservative Gorsuch was appointed to fill the vacancy left by the late, also very conservative Antonin Scalia, Kennedy’s departure offers Republicans a chance to fundamentally reshape the balance of the court.

Kennedy, who was nominated by Ronald Reagan in 1987 and now retires at the age of 81, was not the arch-conservative jurist the Reaganites had hoped for: he grew into the court’s wildcard — its last true “swing vote,” though Kennedy himself hated the label — and sided with both conservative and liberal justices in key cases.

On the one hand: Kennedy voted with conservatives to expand gun rights, and he wrote the majority opinion in Citizens United v. FEC, which paved the way for unlimited corporate spending on elections. On the other, Kennedy was a reliable supporter of equal rights for gay people, casting a crucial vote in four decisions over 20 years, including 2015’s Obergefell v. Hodges, which upheld the constitutionality of gay marriage. Kennedy also voted with the court’s liberals in decisions that upheld Roe v. Wade.

Two takes from really good left-leaning SCOTUS writers: the New Republic’s Matt Ford writes that Kennedy’s lasting legacy will be his exit. Slate’s Mark Joseph Stern writes that Wednesday’s announcement is, effectively, the end of Roe. The Wall Street Journal editorial board, meanwhile, opines that Kennedy did everyone a favor by retiring now.

With the future of everything from abortion access to immigration to voting rights now on the line, the stakes couldn’t be higher on Capitol Hill. Trump has indicated he’ll select his nominee from a shortlist of 25 judges; on the list is David Stras, the former Minnesota Supreme Court justice who was sworn in to the federal 8th Circuit Court of Appeals at the beginning of the year.

Who’s gonna get it? Washington Post writers speculate on the front-runners for the vacancy. Trump told an audience in Fargo on Wednesday that he wants to pick a staunch conservative who could serve for “40 or 45 years.” (Stras, who is 44, does not appear to be on any short-short lists.)

Whoever Trump picks will have to make it through the U.S. Senate, and the margin for error couldn’t be slimmer: with a two-seat advantage in the chamber, Republicans can afford to lose only two of their own in any confirmation fight, assuming Democrats all vote no — which is no guarantee. (Note, too, that Maine Sen. Susan Collins said she can’t support any nominee that doesn’t respect the precedent of Roe.)

Majority Leader Mitch McConnell, whose gambit to block Garland, Obama’s pick to fill the Scalia vacancy, succeeded spectacularly, wants to move to confirm Trump’s nominee by fall, so before the midterm elections. He urged Democrats to treat whoever POTUS picks fairly and with respect.

Hypocrisy! cried the incredulous Democrats. They’re furious that McConnell — whose justification for blocking the Garland nomination was giving the voters a say through the 2016 election — wants to proceed full-speed ahead. (The majority leader, who cracked an ecstatic smirk at the Kennedy news, says this situation is different because 2018 is not a presidential election.)

Democrats, being in the minority, can’t block hearings or votes. But Minority Leader Chuck Schumer made clear in a tweet the party’s official position, which is that the GOP “should follow the rule they set in 2016 not to consider a SCOTUS nominee in an election year.”

Both of Minnesota’s DFL U.S. senators backed up that strategy. Sen. Amy Klobuchar — a member of the Senate Judiciary Committee that will hold hearings on Trump’s nominee — said on NPR Thursday morning “I believe we should stick with the McConnell rule from 2016... Any hearing should be after the election.” She argued that Republicans, in defending McConnell’s move in 2016, inadvertently made the case for stalling any SCOTUS nominee so close to an election, be it midterm-year or presidential.

Sen. Tina Smith, meanwhile, said in a speech on the Senate floor that “Republicans should be held to the same standard they set themselves” with McConnell’s Garland move. “We are a little more than four months from an Election Day that will decide the balance of the Senate… Let us let the American people decide who provides advice and consent,” she said.

That said: the SCOTUS stuff makes an already-insane midterm election even more consequential, and will shift even more national attention and national dollars to Senate races. NYT has a good preview of the coming craziness.

On to the high court’s other news this week: justices ended the spring 2018 term by issuing two five-to-four rulings on two cases that will delight Trump and Republicans, and both have huge implications.

In the case of Janus v. AFSCME, the court ruled, five to four, that public employee unions can’t compel non-members to pay so-called “agency fees” that fund the union’s collective-bargaining activity. This is a huge blow to public sector unions and the overall labor movement — and, by extension, to Democrats, who rely on labor’s fundraising and organizing muscle in their campaigns. The Atlantic asks here whether Janus is the “end of public sector unions in America.”

The outcome prompted a lot of reaction from Minnesota politicians and candidates: GOP U.S. Senate candidate Karin Housley called the decision a “win” for the 1st Amendment; DFL candidate for the 8th District, Joe Radinovich, called it a “disastrous blow” to working people. (In February, I wrote a primer on the Janus case and what it could mean for Minnesota — which has a higher than average rate of union membership. Check it out here.)

This week, the court voted five to four to affirm the constitutionality of the latest version of the Trump administration’s “travel ban,” which prohibits travel to the U.S. for nationals of seven countries, most of which are majority-Muslim. The majority of justices agreed that the policy was not discriminatory and did not target Muslims or other groups. SCOTUSBlog has a good round-up of the legal nitty-gritty here.

Other links: CNN reports on how the travel ban is impacting families around the world. Slate writes that the travel ban decision will be judged as the most shameful decision of Chief Justice John Roberts’ court. Meanwhile, WaPo reports that the decision has vindicated the White House, which has fought hard to craft a legally-acceptable version of a policy it argues is crucial to U.S. national security.

Over to Congress: the latest battle in the House’s Great Immigration Wars, which was months in the making, fizzled out in pretty ignominious fashion this week. On Wednesday, the much-ballyhooed “compromise” immigration bill — the product of difficult and drawn-out negotiations between GOP leadership, conservatives, and moderates, completely tanked on the House floor: it fell short, 121 yes votes to 301 no votes. All 189 Democrats voted no on the bill, as did 112 Republicans. GOP yes votes included Reps. Erik Paulsen and Jason Lewis.

The proposal would have extended DACA for six years while providing $25 billion for Trump’s border wall and making it harder for migrants to claim asylum in the U.S. It was also touted as a solution to the family separation crisis brought about, and sort-of curbed, by the Trump administration. (Last week, the House rejected a proposal, mostly backed by hard-line conservatives, that would have provided an extension of the DACA program while implementing conservative wish-list items like reducing legal immigration.)

With all parties just sort of throwing their hands in the air, it seems the whole exercise was basically an exercise in futility. But there are important political implications in all this ahead of midterm elections in which immigration figures to be a central issue.

It was revealing to watch lawmakers like Paulsen, the 3rd District Republican facing a tough re-election fight, navigate the issue. Paulsen — who usually avoids sticking his neck out on controversial issues — has been particularly vocal on immigration over the past few weeks. Breaking with leadership, he signed the so-called “discharge petition” a few weeks ago that would have forced votes on immigration bills if GOP leaders didn’t put any on the floor.

He’s mostly cast himself as a compromise-oriented pragmatist in the middle of a political fight dominated by extremists. In an op-ed in the Eden Prairie News, Paulsen chastised basically everyone — Trump, the Democrats, and GOP leadership — for the “broken” status quo on immigration.

“The truth is,” Paulsen wrote, “that hard-liners from both parties have decided that there’s more to be gained politically from prolonging the problem than from solving it.” The problem isn’t solved now, but expect Paulsen to tell CD3 voters that he gave it a shot.

Fittingly, on the day Congress wrapped up its most recent failure to get anything done, we got yet another example of the sway the courts will hold on the immigration issue going forward: a federal judge in California issued an injunction blocking family separations at the U.S. border, and ordering authorities to reunify all children with their parents within 30 days.

An absolutely huge week just unfolded in the 2018 primary season: on Tuesday, New York’s 14th Congressional District was the site of the biggest upset of the year. Rep. Joe Crowley, chair of the House Democratic Caucus and a man widely considered a likely successor to Nancy Pelosi, got clobbered by his challenger, Alexandria Ocasio-Cortez, a 28-year old socialist who was waiting tables and bartending before deciding to run against the 20-year incumbent.

Ocasio-Cortez, who canvassed for Sen. Bernie Sanders in 2016, ran on an unabashedly left platform centered on Medicare for all, free college, and abolishing ICE. She painted Crowley as a corporate Democrat out of touch with the district, which encompasses a swath of Queens and the Bronx that is home to many working-class minority communities. (Ocasio-Cortez’s viral campaign ad, made on a shoestring, captures her appeal well.)

Observers like WaPo’s James Hohmann compared the NY-14 outcome to another seismic upset: the 2010 primary defeat of Eric Cantor, then the GOP majority leader and speaker-in-waiting, to tea party upstart Dave Brat. Hohmann posits that Ocasio-Cortez’s victory is a harbinger of the coming Democratic identity crisis, much like Brat’s victory precipitated the GOP civil wars. (Pelosi’s response to Crowley’s defeat amounted to “what, me worry?” or “ ¯\_(ツ)_/¯.”)

But where there were plenty of ambitious Republicans waiting to fill Cantor’s shoes, Crowley’s ouster leaves a huge vacuum in Democrats’ Capitol Hill leadership, writes veteran Hill reporter Paul Kane. Many plausible Pelosi successors have left Congress; meanwhile, Pelosi herself remains in charge. The top three House Democrats are all ages 77 to 79.

Moreover, Ocasio-Cortez — and other prospective insurgent House Dems, like state Rep. Ilhan Omar — are very chilly on the prospect of supporting Pelosi as their leader if elected. (Omar, it should be noted, tweeted out support for Ocasio-Cortez on Tuesday.) Politico reports that Pelosi’s path back to the speaker’s chair just got a lot harder.

The week’s essential reads

Ocasio-Cortez’s victory this week highlights a broader trend in Democratic politics this election cycle, reports WaPo’s Michael Scherer and Dave Weigel: the major schism in Democratic primaries in 2018 and 2020 may not be over Bernie and Hillary politics, but over what race, gender, and religion that candidates should be. And white men like Joe Crowley are being pushed aside:

Given an option, Democratic voters have been picking women, racial minorities, and gay men and lesbians in races around the country at historic rates, often at the expense of the white male candidates who in past years typified the party’s offerings. ­Ocasio-Cortez’s opponent, veteran Rep. Joseph Crowley, a white man representing a ­majority-minority district, fit that bill.

The divide is more stark than any other so far in the primary season, and it reflects the party’s growing dependence on female and minority voters. The ideological splits between liberal and far-left candidates were predicted to be the focus of clashes this year, but voters have sent conflicting signals on that front.

“The ideological part is only a very small piece. There is something deeper going on,” said Simon Rosenberg, a strategist at the New Democratic Network. “In this new social media age of politics, compelling, authentic candidates who can tell positive stories about themselves are succeeding over lifer politicians.”

Since the 2016 election, we’ve been exposed to the various ways Russian internet trolls sought to influence the U.S. electorate. One of those ways was inflaming racial tensions on social media, and in a deep report, CNN’s Donie O’Sullivan explains how trolls used the death of Philando Castile at the hands of police to achieve that goal, and the red flags it raised for real activists along the way.

The revelations helped to show Russia's use of social media to interfere in American life extended beyond the presidential election, and into efforts to exacerbate existing divisions in the U.S. A few weeks later, in October 2017, CNN found another group posing as an organization of Black Lives Matter activists -- "Don't Shoot."

As CNN began investigating "Don't Shoot," it found that activists like Grimm and Tyler had expressed some suspicions about the group in online posts a year earlier. They hadn't, however, suspected it was Russian.

When Valerie Castile, Philando's mother, learned about Don't Shoot's Russian roots, she was annoyed her son's death had been used by the campaign. "God gave him to me, nobody had the right to take him from me. One man should not have that much power to say whether who lives and who dies. No, one man shouldn't have that much power, and then to take such a sad situation and exploit it, no, I don't like that at all and for them to use my baby, no."

Trump’s border wall is hated for many reasons by many people on both sides of the U.S.-Mexico border. In the border city of Tijuana, though — where a wall has separated it from California for 20 years — the walls have mostly done what they set out to do. Politico Magazine’s Sam Quinones offers a well-reported story on what happens after the walls go up:

Tijuanans, though, tend to view the idea of yet another wall with indifference. “We already have two walls. I’m not sure what another one would do,” says Miguel Marshall, a young entrepreneur in the city.

Tijuana has in many ways been a success story since the 1990s—and at least some of that success owes to the border walls. Over the years, the walls, along with bulked-up security, have imposed order on a chaotic border, where extortion, rape and robbery had been common. More broadly, the walls were the first nudge that forced the city to focus inward and wean itself, over many years, from its dependence on easy money from elsewhere. Eight former polleros I spoke with for this story, including Raul, told me that after the walls went up, their smuggling business began to taper off; they no longer facilitate illegal crossings. (Illegal immigrant apprehensions at the southwest border overall have dropped by more than 70 percent in that time, from well north of 1 million annually in the late 1990s to about 300,000 in the 2017 fiscal year.) …

Tijuana continues to face its share of troubles. Drug trade-related murders have recently spiked, and as the United States sends undocumented immigrants back to Mexico, new flophouses have cropped up in Tijuana for deportees. Nor have illegal border crossings to the United States gone away, as has been made clear by the family-separation crisis at the U.S. border in recent weeks. But the time I’ve spent in Tijuana suggests that the walls at least were the first jolt in a citywide reinvention that has been largely positive. As the United States and Mexico face the prospect of a tougher border—whether Trump gets his wall or not—in Tijuana, at least, locals have stopped looking north quite so much as they once did.

The week in takes

Your weekend longread

Where’s Barack Obama? That’s the simple question that Gabriel Debenedetti asks in a big new story for New York magazine. The former president has disappeared into the kind of life that former presidents have tended to live — focusing on pet projects, spending time catching up with family and friends, and keeping a low profile, being mindful not to hover too much over the new president’s business.

Yet, President Trump’s constant, dripping-with-hatred criticism of his predecessor is almost unparalleled in modern politics. Beyond that, the Democratic Party has no obvious leader or figurehead to rally their #resistance pushback around. Those conditions suggest Obama might be a more vocal former POTUS than we’ve seen before — but, so far, he’s mostly stayed above the fray, to the dismay of millions of supporters. Debenedetti’s explanation of why is a read well worth your time.

Beyond the anguish is, often, simply bafflement: How did the most ubiquitous man in America for eight years virtually disappear? Over the course of his presidency, Obama cast himself as the country’s secular minister as much as its commander-in-chief, someone who understood the moral core of the nation and felt compelled to insist that we live up to it. What explains his near absence from the political stage, where he might argue publicly against the reversals of his policy accomplishments, and also from American life more broadly? What is keeping him from speaking more frequently about the need to protect democratic norms and the rule of law, to be decent people? Where is the man who cried after Sandy Hook and sang in Charleston, who after each mass shooting tried to soothe an outraged nation, who spoke of American values in his travels across the globe? And, tactically, what is behind the relative silence of one of the most popular figures alive just as American politics appears to so many to be on the brink of breaking?

Obama’s reticence is more than simply a matter of communications strategy. He has mostly opted out of liberal America’s collective Trump-outrage cycle. Though he reads the Times and other newspapers, he doesn’t follow daily Trump developments on Twitter or watch television news. He is upset by the administration’s actions, and he’s confided to friends that what worries him most is the international order, the standing of the office of the presidency, the erosion of democratic norms, and the struggles of people who are suddenly unsure of their immigration status or the future of their health-care coverage. Still, in conversations with political allies, Obama insists that today’s domestic mess is a blip on the long arc of history and argues that his own work must be focused on progress over time — specifically on empowering a new generation of leaders. He says his legacy is not what concerns him. (“Michelle and I are fine,” he tells those who ask about it.) And while he often says he misses the day-to-day work of fixing people’s problems, he has even less patience for day-to-day politics than he did as president.

What to look for next week

Congress will be out next week for the July 4th holiday. With GOP senators eager to get going on the process of confirming a new Supreme Court justice, expect lots of speculation over the recess about who the nominee might be, and how the politics of it all are shaping up.

With the high court’s term finished and Congress out, if news gets made in D.C. next week, it’ll be from President Trump. He’s demonstrated an itchy twitter finger when things get slow in the capital, so we could see fireworks of more than one kind over the holiday.

Never fear, however: the D.C. memo will hit your inbox next Thursday. Until then, have a great weekend, enjoy the holiday, and email me at sbrodey@minnpost.com.



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