EXTREME OUTRAGE TO CONSPICUOUS SILENCE … OH THAT, THE CONSTITUTION … ENCRYPTION DEBATE … DEATHWATCH …DONALD AND THE POPE … BERNIE IS SANTA CLAUS … WHAT’S A SUPERDELEGATE? … HOW TO WIN AN ELECTION … and other news of the week.
Joyce Rubenstein and the Capstone Team (John Rogers, Alan MacLeod, Will Stone, Diane Rogers, Erik Oksala and Kayla Baca)
He influenced a generation of judges, lawyers, and students, and profoundly shaped the legal landscape. He will no doubt be remembered as one of the most consequential judges and thinkers to serve on the Supreme Court. Justice Scalia dedicated his life to the cornerstone of our democracy: The rule of law. Tonight, we honor his extraordinary service to our nation and remember one of the towering legal figures of our time.” (President Obama)
EXTREME OUTRAGE TO CONSPICUOUS SILENCE The Fix: “If you’re like most Americans, your answer to whether the Senate should vote on President Obama’s Supreme Court pick depends on your politics. According to a new NBC News/Wall Street Journal poll, the American public is split on whether the Senate should vote this year on Obama’s nominee to replace the late Supreme Court Justice Antonin Scalia. Senate Republican leaders have drawn a line in the sand, saying that the vacancy comes so close to the end of Obama’s term they don’t want him to submit a nominee and that it would be fairer to wait for the next president to name a replacement. Forty-two percent of Americans agree with that reasoning, while 43 percent of respondents think the Senate should vote on Obama’s pick. SUPRISE those opinions break down along party lines. Eighty-one percent of Democrats want a vote this year; 81 percent of Republican want to wait.
McCONNELL THROWS DOWN THE GAUNTLET Politico: McConnell said the Senate should not confirm a replacement until after the 2016 election — an historic rebuke of President Obama’s authority and an extraordinary challenge to the practice of considering each nominee on his or her individual merits. The swiftness of McConnell’s statement (about an hour after Scalia’s death was confirmed) stunned White House officials who had expected the Kentucky Republican to block their nominee with every tool at his disposal, but didn’t imagine the combative GOP leader would issue an instant, categorical rejection of anyone Obama chose to nominate. AND THEN Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), indicated he has no plans to start up the confirmation process on his panel. By using his power as chairman to block a vote in committee, Grassley can box out Reid or other Democrats from trying to call up a nomination on the Senate floor, as Reid threatened to do when Loretta Lynch was a nominee to be attorney general. And McConnell can stop Obama from recess appointments by scheduling pro forma sessions of the Senate. … McConnell’s move was all the more surprising considering his role as a self-appointing guardian of Senate tradition; But, more than anything, it reflects McConnell’s adjustment to his party’s ascendant right wing — and his controversial statement, during Obama’s first term, that his prime motive was to deny the president a second term in office. His declaration sets up a bruising political fight — welcomed by many Democrats — with Obama along with most of the GOP field.” DIGGING IN Huddle: “While there have been a couple assorted rhetorical cracks by Republicans this week, the general theme has been retrenchment around Majority Leader Mitch McConnell’s plans to block a Supreme Court nominee. The polls don’t give an advantage to either party at this time on the matter, and the biggest effect so far of the partisan fight is that it riles up, well, partisans. We all should be prepared for months and months of butting heads, attack ads and lots of old quotes being flung about, but for now the bottom line remains the same: Republicans in Congress don’t want a Supreme Court nominee, and Democrats do. It could be a long year. McCONNELL + GRASSLEY GET TOGETHER: And the GOP leader and Senate Judiciary Chairman Chuck Grassley are not leaving a lot of daylight on the court vacancy in this op-ed for the Washington Post. “Even if some Democrats may be having amnesiac experiences today, it’s clear that concern over confirming Supreme Court nominations made near the end of a presidential term is not new … Given that we are in the midst of the presidential election process, we believe that the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court.” NOT SO FAST Here’s what Sen. Patrick Leahy, the top Judiciary Democrat and longest-serving D senator, has to say on the matter today in a forthcoming speech. “I have served in the Senate for more than four decades, and on the Judiciary Committee for 36 years. During that time, Supreme Court nominees have always been treated differently compared to other nominees — they have always received a hearing and they have always been reported to the full Senate. During my time on Committee, we have never refused to send a nominee to the full Senate for consideration. I expect Senate Republicans to uphold this bipartisan tradition for the next Supreme Court nominee.”
OH THAT … THE CONSTITUTION
“When there is a vacancy on the Supreme Court, the president is to nominate someone, the Senate is to consider that nomination and either they disapprove of that nominee or that nominee is elevated to the Supreme Court. Historically, this has not been viewed as a question, there is no unwritten law that says it can only be done on off years.”
– President Obama
WHAT HAPPENS WITH AN EIGHT JUSTICE COURT? A majority decision requires a 5-3 vote. If the Supreme Court is deadlocked 4-4, the lower court’s decision in the case is upheld but it does not creat a legal precedent. The best way to say it, if it 4-4, it’s as if the court had never even heard the case.
THE ENCRYPTION DEBATE The Fix: “Earlier this week, a federal judge ordered Apple to create a way to make it easier for the FBI to try and unencrypt the iPhone used by one of the San Bernardino shooters. …The problem … there are times in which law enforcement wants — needs — to know what people are saying, and the broad use of encryption technologies makes it much harder to do that. Apple’s messaging system uses “end-to-end” encryption, which means that when the message leaves your phone it is encrypted and it is only encrypted when it reaches the other person. It passes over Apple’s servers to get there, but Apple can’t see what you’re saying. This is good for privacy; this is bad for the police. CANDIDATES LOOK FOR MIDDLE GROUND … When candidates are asked about the issue, as Hillary and Bernie were Thursday, they have to figure out where to find some middle ground. “The problem is that there really isn’t any middle ground, unlike many things in the political world. Creating a way to undermine encryption undermines that encryption for everyone. No matter how well the door in the endless, giant wall is hidden, someone can find it.” SAN BERNADINO In the San Bernardino case, the court ordered Apple not to undo its encryption but instead to facilitate the process of trying to hack that encryption. Unencrypting something often requires a “brute force” attack, trying every possible password to unlock the data. By default, Apple only lets you try this a few times. What the court ordered is that a brute force attack be made easier, without the built-in limits the iPhone software includes. In other words, the court wants Apple to create a back door through which the feds can more easily access data.
Technologist Bruce Schneier explained in an essay in The Post this week why that’s a problem: Creating such a system would mean that any hacker, not just one from the FBI, could find a way into your phone. “The hacked software the court and the FBI wants Apple to provide,” Schneier writes, “would be general. It would work on any phone of the same model. It has to. Make no mistake; this is what a backdoor looks like. This is an existing vulnerability in iPhone security that could be exploited by anyone.”
REJECTED The Hill: “The head of the House Appropriations Committee on Thursday turned down the Obama administration’s request for emergency funding to fight the Zika virus, citing a pool of funding leftover from the Ebola virus (which the White House rejected, saying that money should be used to follow through on the Ebola response). Federal health officials had requested $1.8 billion to combat the Zika virus both in the U.S. and abroad. Most of that money would have gone to the Health and Human Services Department (HHS) for research into vaccines and diagnostics of the relatively unknown disease, which is largely spread by mosquitoes and has infected dozens of people in the U.S. since spreading from Latin America. HEY It also appears to be a shift from previous remarks by Speaker Paul Ryan (R-Wis.), who said earlier this month that he expected bipartisan action on Zika funding, though he did not indicate how much funding he wanted or where it would come from.”
UNLOCK THE CABLE BOX The Hill: “The Federal Communications Commission (FCC) voted Thursday to formally consider rules that would make it easier for companies like Google and TiVo to manufacture pay-television boxes, which supporters say will deliver better options for consumers and save them money. Public interest advocates and the commission’s chairman, Tom Wheeler, say the proposal would allow other companies to compete with pay-television providers like Comcast and DirecTV, who control the rental market for the boxes.BUT, BUT, BUT the proposal has rankled the pay-TV industry, which the FCC says brings in about $20 billion a year from renting the boxes. The item approved on Thursday is only the first step towards the proposed new rules. Interested parties will now be able to comment on the proposal, and the commission will have to vote again before they are adopted. Industry groups have also not yet ruled out suing the commission over some aspects of the rules.
NEXT WEEK Defense Secretary Ash Carter and Joint Chiefs Chairman Gen. Joseph Dunford head to Capitol Hill Thursday for their first budget hearing of the year before the House Defense Appropriations Subcommittee. The two are likely to be next week’s main event on the fiscal 2017 defense budget, even if the Appropriations panel doesn’t like to make news as much as the authorizing committees..
DEATHWATCH Politico: “Some of Jeb Bush’s most steadfast allies think Saturday might be the end. Donors, who poured millions into his campaign and super PAC, have stopped giving – one refusing a direct request to raise $1 million this week. Bush himself is hitting the phones, pleading for patience with his most influential supporters. … [E]ven before [S.C. Gov. Nikki] Haley’s endorsement [of Rubio], several long-time Bush donors were emailing each other Tuesday morning, expressing a collective readiness to intervene and tell Bush, depending on his finish here Saturday night, that his time is up.'” HOW MARCO SLEW HIS MENTOR Politico Magazine Friday Cover: It’s seen as one of the great political betrayals of our time. But for Jeb, insiders say, the truth may be even more embarrassing”: “Bush and Rubio … relationship … is less close and more transactional than previously reported.”
NOT SO FAST Politico: John Weaver, Kasich campaign senior strategist, pushes back on the idea that this’ll look like a Trump-Cruz-Rubio race after tomorrow’s South Carolina GOP primary: The Ohio governor is certainly staying in through the, um, Ohio primary on March 15. “Our fundraising is going gangbusters, and Bush’s departure will mean the spigots really open for us,” Weaver said.”
DONALD AND THE POPE via AP: “…when asked whether an American Catholic can vote for Trump, with his statements about deportation and a border wall: “[A] person who thinks only about building walls, wherever they may be, and not building bridges, is not Christian. This is not in the Gospel. As far as what you said about whether I would advise to vote or not to vote, I am not going to get involved in that. I say only that this man is not Christian if he has said things like that. We must see if he said things in that way and in this I give the benefit of the doubt.” TRUMP CALLS OUT POPE “For a religious leader to question a person’s faith is disgraceful.
@BuzzFeedAndrew: “Probably been said already but Pope really helped Trump. He’ll dominate the news cycle going into SC primary.”
SATURDAY’S DEMOCRATIC CAUCUSES in Nevada, where there isn’t a lot of polling, look like a coin flip to the campaigns. So even if HRC wins, it’s likely to be razor-thin.
BERNIE IS SANTA CLAUS “Bernie Sanders is basically acting like Santa Claus, and people don’t like to be told what they can’t have. … [P]rimaries are about excitement, and Sanders is kind of the excitement candidate.” – David Plouffe
THOSE SUPERDELEGATES AP “After the contests in Iowa and New Hampshire, Sanders has a small 36-32 lead among delegates won in primaries and caucuses. But when superdelegates are included, Clinton leads 481-55 … It’s essentially a parallel election that underscores Clinton’s lopsided support from the Democratic establishment.”
WHAT’S A SUPERDELEGATE? AP “Superdelegates aren’t new. They have been part of the Democratic Party’s nominating process since 1984.They automatically attend the national convention and can support the candidate of their choice, regardless of whom primary voters back. They are party leaders — members of Congress, party officials and members of the Democratic National Committee. There are 712 superdelegates, about 30 percent of the 2,382 delegates needed to claim the nomination.The Republicans also have some automatic delegates but not nearly as many.”
BERNIE’S ARMY OF CODERS Politico: “If viral videos, data analytics, Twitter and meet-up pages were the big breakthroughs of past presidential elections, 2016 could very well go down as the year of the app. And no one has been a bigger beneficiary than [Bernie] Sanders, an anti-establishment independent-turned-Democrat with legions of code-savvy, unpaid helpers. Many of his volunteer coders are under-30 political neophytes first drawn to Sanders through a fan-driven Reddit page, an online message board that is far and away the largest for anyone in the 2016 field. With more than 188,000 subscribers, the SandersForPresident subReddit is more popular than pages featuring cars, beer or even porn. The online landscape of Bernie apps is so broad it can be hard to get a handle on. Some can be downloaded for free from the Apple and Google Play app stores; others are internal tools for Sanders’ volunteers to use. There’s an app dubbed “Ground Control” that organizes volunteer phone-bank hosts and helps campaign staffers approve grass-roots events. Another app, Bernie BNB, has about 1,000 Sanders-minded volunteers searching either for a place to spend the night or offering a free spare bed in their homes. Two million visitors have clicked on feelthebern.org, a heavily footnoted site that compiles the Vermont senator’s stances on a range of policy positions from climate change to immigration. Volunteers can turn each page into a downloadable flier that can be used for canvassing. IN CONTRAST [Hillary Clinton’s} operation is led in part by former Google executive Stephanie Hannon and an army of digital hands who honed their online skills on Barack Obama’s presidential campaigns or elsewhere in the Democratic advocacy power structure. But Clinton’s tech innovators are hobbled, several Democratic and GOP tech experts said in interviews, by a hierarchical management structure that is seen as stifling new projects, or at least requiring them to win multiple layers of sign-offs before they go live.
HOW TO WIN AN ELECTION NYTs: “Every election cycle, we’re asked to make monumental decisions about which people and policies should control our country, and we have to sort through a barrage of information to arrive at our selections. Often, we pick the candidate who breaks through the noise with a message that resonates with us. The politicians that prevail are excellent storytellers…. In this Op-Doc, political strategist Mark McKinnon explains how it works. Mr. McKinnon has had a long career working for politicians from both parties. As the lead media strategist for George W. Bush’s 2000 and 2004 campaigns as well as John McCain’s winning 2008 primary campaign, he was instrumental in shaping the way we perceived his candidates and their opponents. Remember the 2004 windsurfing ad that branded John Kerry a flip-flopper? That’s his work. But Mr. McKinnon burned out on presidential campaigns. … In this film, he reveals the storytelling strategies used to elect Mr. Bush with openness and candor, and in doing so lays bare the fundamental narrative strategies that remain at the core of today’s presidential campaigns. But Mr. McKinnon believes that the power of storytelling has a dark side that voters should be more aware of. His new message is a warning to all citizens: You’re being manipulated, and our democracy relies on your ability to see that . You won’t want to miss this excellent video. Spend 8 minutes. It’s worth it. CLICK HERE
LITERARY GARBO Harper Lee, whose first novel, “To Kill a Mockingbird,” about racial injustice in a small Alabama town, sold more than 10 million copies and became one of the most beloved and most taught works of fiction ever written by an American, has died. She was 89.”