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The direction of the Supreme Court was one of the most important issues in the election, and rightly so.  Over the last three generations, both the size of government and the Court's role in influencing it (by, for example, resolving basic cultural questions about marriage, abortion, gun rights, free speech and criminal procedure) have grown tremendously.

Ascendant Republicans and President-elect Trump want a Justice in the Scalia mold  --  an originalist and a textualist, a jurist who believes the Constitution says what it says and doesn't say what it doesn't say.  It's less clear to me what the Democrats want.  Some seem to want a liberal leader in the mold of Justice Ginsburg who will move constitutional doctrine to the left.  Others seem to prefer an "identity candidate"  --  a woman, gay, transgender, black or Hispanic  --  largely for symbolic and/or political value.

It will come as no surprise to readers that I prefer the originalist/textualist choice. Strict fidelity to the text and original meaning of the Constitution seems to me to be the best way to curb judicial license and keep the most fundamental decisions about the rules we must live under where, overwhelmingly, they belong  --  in democratic self-government.

With the filibuster for Supreme Court candidates still among the Senate's rules, however, and the Republicans having only 51 (probably to be 52) of the required 60 votes, the question is how to get a Scalia-style nominee confirmed.
There is a right way and a wrong way to invoke the "nuclear option" to eliminate the filibuster or to limit the topics on which it may be used.  There is a lawful way and a lawless way.  Harry Reid and his gang did it the lawless way.  The Senate majority of the incoming 115th Congress should do it the lawful way as the first order of business.

Roots of the Populist Wave

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Bret Stephens writes the Global View column at the WSJ.  He was that paper's most persistent and outspoken critic of Donald Trump throughout the campaign.  He has these thoughts on the global populist wave (italics added):

Proposition 66 Status

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As of 2:24 pm today, the Proposition 66 margin of "yes" over "no" is 287,711 votes.  This exceeds the number of unprocessed ballots in today's 11:59 am Unprocessed Ballots Report, which is 232,852.

The Secretary of State has until December 16 to certify for results for all races except the presidential election.

The all-but-final result on the Proposition 62, the death penalty repeal measure, is 46.9% to 53.1%.  The margin is 845,755 votes.  The 6% spread is greater than the 4% spread by which California voters rejected substantially the same proposal four years earlier as Proposition 34. 

Is Jeff Sessions a Racist?

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Larry Thompson is a former Deputy Attorney General for Pres. George W. Bush. He signed an anti-Trump letter in the recent campaign, along with quite a few other former Bush Administration officials.  His more recent letter to the editor (I believe the editor of the NYT, concerning its story on Nov. 17) tells us a good deal about Mr. Trump's nominee to be Attorney General.

Amnesty for Hillary

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In 1868, the treason trial of Jefferson Davis was pending.  He certainly did levy war against the United States, which is the constitutional definition.  See Article III, ยง 3.  Nonetheless, the President decided to issue a blanket amnesty to help heal the nation's wounds, and that was the end of the case.  See Case of Davis, 7 F. Cas. 63, 102.

Our country today is not as bitterly divided as it was then, but healing is still in order. 

As former Attorney General Mukasey explained in the Wall Street Journal in July, the evidence against Hillary Clinton clearly fulfills the requirements of the two criminal statutes involved, and FBI Director Comey's statement that no reasonable prosecutor would pursue the charges was just wrong.  Mr. Mukasey, after all, is a reasonable prosecutor.

Even so, there are times when other considerations come into play so that a prosecution should not be pursued even though fully justified on the facts and the law.  President-elect Trump has evidently decided that this is one of them. 
Damian Paletta and Byron Tau have this story in the Wall Street Journal.

And while candidates should generally keep their campaign promises, it is sometimes better to let those go also.
Expecting the sourpuss contingent at the New York Times to give Jeff Sessions a fair shake is like expecting George Soros to have a kind word for America.  So it was no surprise when the Times' hatchet job appeared a few days ago, "Jeff Sessions as Attorney General: An Insult to Justice."  There was the usual wail about racism, as phony as it is ancient, but what caught my eye was this breathtakingly ignorant squib about Sen. Sessions and sentencing "reform":

Based on his record, we can form a fairly clear picture of what his Justice Department would look like:....Forget [about] any federal criminal-justice reform, which was on the cusp of passage in Congress before Mr. Trump's "law and order" campaign. Mr. Sessions strongly opposed bipartisan legislation to scale back the outrageously harsh sentences that filled federal prisons with low-level drug offenders. Instead, he called for more mandatory-minimum sentences and harsher punishments for drug crimes.

Question:  Does the NYT have anyone  --  really, anyone  --  in Washington who actually follows justice-related legislation?



Yes on 66 Committee Declares Victory

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Californians to Mend, Not End, the Death Penalty. No on Prop 62, Yes on Prop 66 issued a press release this afternoon.  The text follows the break.

Update (11/23):  AP "called" the race the evening of Tuesday, November 22.  The prior information noted here that AP had called it the previous Friday was incorrect.

Prop. 66 Count Update

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As California counties continue to count previously unprocessed ballots, the percentages for Proposition 66 remain quite steady at 51-49.  I have run a calculation using the county returns so far and the number of unprocessed ballots for each county.

Assuming that the unprocessed ballots for each county come in at the same yes/no percentages as the ballots for that county counted so far, the statewide totals will remain 51-49.  That assumption has held quite well so far, but of course we will not know until it is done.
C&C is not primarily about politics, but politics makes itself felt in staffing any new administration.  The primary goal, however, is to bring in people who know what they are doing and whose integrity, experience and judgment are widely respected, even if their views aren't shared.  Obviously, you also need people in line with what the new President told the electorate he was going to do if he won.

With this in mind, I'll throw out some suggestions about who I think would be good appointments in the coming Trump Administration.

The Scope of the Victory

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The Washington Post's coverage of Trump was as biased as I have seen during a campaign.  It did not outdo the NYT, but neither did it make much of an effort to resemble neutral journalism.  It was one snarky, condescending article after the next. I'm expecting oddles of sour grapes over the next few days.  For now, however, it does an accurate, short summary of the extent of Trump's victory:

Because his adopted party maintained its majorities in the Senate and the House, Trump can now advance a very ambitious agenda. He gets to pick Antontin Scalia's replacement, vindicating Mitch McConnell's decision to deny Merrick Garland a hearing and ensuring that the GOP will control all three branches of government. Because Barack Obama has relied so much on executive actions since the 2010 midterms, if he chooses, Trump can roll back many of the president's signature achievements. The Republican Congress can also use budget reconciliation to eviscerate Obamacare. TPP is definitively dead.

I want to emphasize especially the key role Sen. McConnell played in giving our country the opportunity, at least, to build on Justice Scalia's legacy rather than overrule it bit-by-bit.

Running the Table on the Death Penalty

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Here are results on death penalty ballot measures as of 6:40 am PST:

Nebraska:  Referendum 426 to repeal the Legislature's repeal of the death penalty, thereby reinstating capital punishment in the state approved 61-39.  All precincts completely reporting.

Oklahoma:  Question 776 to amend the state constitution to preclude any doubt of the constitutionality of the death penalty approved 66-34.  All precincts completely reporting.

California, with 99.4% of precincts reporting (not all completely): 

Proposition 62 to repeal the death penalty defeated 46-54.

Proposition 66 to speed up the review of capital cases approved 51-49.

Note that California voters rejected repeal by double the margin that they rejected Proposition 34 four years ago.

Why the squeaker on 66?  A confusing ballot label did not really tell the voters what it is about, so the people who had not paid much attention to the issue before going into the voting booth did not know.  Californians tend to vote no on ballot measures when they are confused or uncertain.  In addition, a profoundly dishonest campaign of mailers, advertisements, and articles by the opponents telling outright lies about the proposition doubtless convinced many people who agree with the proposition's goals to nonetheless vote against it.

Update 11/14:  Yet despite all that, Proposition 66 still appears headed for victory.  With further information on the scope of uncounted ballots, my prior assessment of the unlikelihood of a change in result went too far, but a change is still unlikely.  The opponents seem to think so, too, because they have spent the resources to file a meritless suit to stop enforcement of Proposition 66 even before it is certified.

Black Lives Matter Gets Creamed

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Black Lives Matter was one issue that clearly divided President-Elect Trump from Sec. Clinton.  Trump robustly supported the police and proactive policing; Clinton made a point of playing up to (one might say "pandering to," but that would be ungenerous) BLM and its supporters.

Tonight's result leaves little doubt where the country is on the issue, not that there was a lot of doubt anyway, what with trust in the police surging in the recent Gallop poll to a near-record 76%.  BLM and its theory of America as a racist pigsty belongs to academics, think tanks and left-wing politicians, but commands almost no support elsewhere.

It was also heartening to see Mr. Trump give special recognition in his victory speech to Sen. Jeff Sessions and Mayor Rudy Giuliani, two of the leading voices exposing the folly of BLM.

California Proposition Returns

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Initial California returns on the ballot propositions look good on the death penalty.  With 10.7% of precincts reporting, repeal Proposition 62 is failing 44.4% to 55.6% while "fix it" Proposition 66 is winning 52.3% to 47.7%.  However, early returns are not always representative of the final result, so it's too soon to celebrate.

Meanwhile, Gov. Brown's Jailbreak Initiative is clearly winning.  The underfunded opposition was evidently unable to inform the people just how bad this ill-conceived measure is.

Update 9:50 PST:  With 21.7% reporting, the results are little changed.

Update 11:05 PST:  With 38.4% reporting --  62 Yes 45.3% to No 54.7% -- 66 Yes 51.5% to No 48.5%

Update Midnight PST:  With slightly over half the vote counted, Proposition 62 remains steadily 9% behind, and I think we can confidently say that the people of California have rejected the repeal and reaffirmed their support for the death penalty yet again.

Proposition 66 remains 3% ahead and is very likely to be the law tomorrow.  It has been many years in the making.

Prop66.jpg

Oliver Roeder posts at the 538 election blog:

As the presidential race unfolds dramatically, the death penalty is quietly having a successful night. The AP has called the vote on the death penalty ballot initiative in Oklahoma; the voters there have adopted a state constitutional amendment strengthening the punishment there, guaranteeing the state the power to execute and the ability to choose the means of execution. And Nebraska results are coming in. With 12 percent reporting, "repeal" leads in the vote on Referendum 426, 52-48. If that result holds, capital punishment will be reintroduced in the state. The state's legislature had eliminated it last year.

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