The Endorsement Primary

Before any votes are cast, presidential candidates compete for the support of influential members of their party, especially elected officials like U.S. representatives, senators and governors. During the period known as the “invisible primary,” these “party elites” seek to coalesce around the candidates they find most acceptable as their party’s nominee. Over the past few decades, when these elites have reached a consensus on the best candidate, rank-and-file voters have usually followed.
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A background guide to “Brexit” from the European Union

IN EARLY 2015 the chances of ”Brexit”— Britain departing from the European Union—seemed remote. Today, largely because of Europe’s migration crisis and the interminable euro mess, the polls have narrowed. Some recent surveys even find a majority of Britons wanting to leave.

David Cameron, Britain’s Conservative prime minister, is partly responsible. Although he has repeatedly urged his party to stop “banging on about Europe”, his Eurosceptic backbenchers, scared witless by the rise of Nigel Farage’s virulently anti-EU UK Independence Party (UKIP), have constantly hassled him to adopt a tougher line with Brussels. His response has generally been to appease them. One early morsel he threw them was the 2011 European Union Act, which requires any EU-wide treaty that passes substantive new powers to Brussels to be put to a British referendum. That sounded like a big concession, but no new treaties were then in prospect. In January 2013, Mr Cameron promised that, if the Tories were re-elected in May 2015, he would renegotiate Britain’s membership and hold an in-out referendum by the end of 2017.

Following his election victory in May 2015, the prime minister claimed to have embarked on a renegotiation to fix what he says is wrong with the EU. Yet he was deliberately vague about what changes he wants, partly for fear that if his shopping list leaks Eurosceptics in his own party will rubbish it as inadequate. At the European summit on October 15th-16th, however, he was told by his fellow heads of government to produce a list of precise demands in November if there was to be any chance of the negotiations being concluded, as he at one time hoped, at the December European summit. He did produce a list of demands but a deal still eludes him. The prime minister is now hopeful of getting an agreement by the end of February.

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Can Republicans really block Obama’s Supreme Court nomination for a year? Probably.

Come January 2017, Republicans have a chance at controlling the House of Representatives, the Senate and the White House.

So it stands to reason that Republicans have very little incentive to even consider President Obama's suggestion for who should replace Justice Antonin Scalia, who died Saturday.

There's some historical precedent for them to do just that. A hazy rule dating back decades that congressional experts say is really more of a tradition suggests senators of the opposition party of the White House can oppose some judicial nominations in the months before a presidential election.

It's known as the "Thurmond Rule," for reasons we'll get into, but there is widespread disagreement on what it even means and when it can be invoked.

"It's not a rule," said Russell Wheeler, a judicial expert with the Brookings Institution. "It's just sort of a pie-in-the-sky flexibility that both parties try to disown when it's convenient for them and try to say it means something when it's not."

Whether rule or tradition, it pops up throughout history in times like these, when a high-stakes judicial nomination collides with a presidential election.

But Wheeler and other congressional experts think the rule is less in-play now than in the past. Republicans have control of the Senate and can simply sit on the nomination if they want -- no matter how much the other side cries foul.

Wheeler said the argument they can make to do that is less about a somewhat-arcane parliamentary tradition and more about whether it's fair to consider a life-time judicial nominee by a lame-duck president before such a pivotal presidential election.
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What happens to this Term’s close cases?

The passing of Justice Scalia of course affects the cases now before the Court.  Votes that the Justice cast in cases that have not been publicly decided are void.  Of course, if Justice Scalia’s vote was not necessary to the outcome – for example, if he was in the dissent or if the majority included more than five Justices – then the case will still be decided, only by an eight-member Court.

If Justice Scalia was part of a five-Justice majority in a case – for example, the Friedrichs case, in which the Court was expected to limit mandatory union contributions – the Court is now divided four to four.  In those cases, there is no majority for a decision and the lower court’s ruling stands, as if the Supreme Court had never heard the case.  Because it is very unlikely that a replacement will be appointed this Term, we should expect to see a number of such cases in which the lower court’s decision is “affirmed by an equally divided Court.”

The most immediate and important implications involve that union case.  A conservative ruling in that case is now unlikely to issue.  Other significant cases in which the Court may now be equally divided include Evenwel v. Abbott (on the meaning of the “one person, one vote” guarantee), the cases challenging the accommodation for religious organizations under the Affordable Care Act’s contraceptive mandate, and the challenge to the Obama administration’s immigration policy.

The Court is also of course hearing a significant abortion case, involving multiple restrictions adopted by Texas.  In my estimation, the Court was likely to strike those provisions down.  If so, the Court would still rule – deciding the case with eight Justices.

Conversely, the Court was likely to limit affirmative action in public higher education in the Fisher case.  But because only three of the liberal Justices are participating (Justice Kagan is recused), conservatives would retain a narrow majority.

There is also recent precedent for the Court to attempt to avoid issuing a number of equally divided rulings.  In Chief Justice Roberts’s first Term, the Court in similar circumstances decided a number of significant cases by instead issuing relatively unimportant, often procedural decisions.  It is unclear if the Justices will take the same approach in any of this Term’s major, closely divided cases.

Replacing Antonin Scalia’s will be a profound test of the American political system

Justice Antonin Scalia's death is a test for the American political system — a test it's unlikely to pass.

The test is simple. Can divided government actually govern, given today's more polarized parties? In the past, it could. In 1988, a presidential election year, a Democratic Senate unanimously approved President Ronald Reagan's nomination of Anthony Kennedy to the Supreme Court. The Senate wasn't passive; it had previously rejected Reagan's initial nominee, Robert Bork, and his second choice Douglas Ginsburg dropped out of the running. However, it ultimately did its job — even amidst an election and divided party control of the government.

But moments after reports first filtered out of Scalia's death, and with no knowledge of who President Obama planned to name as Scalia's replacement, senior Republicans said they wouldn't even consider an appointment from Obama, despite the fact that he has almost a year left in his presidency.

Ted Cruz was first to voice this opinion, but it was Senate Majority Leader Mitch McConnell's statement that carried the most consequence. "The American people should have a voice in the selection of their next Supreme Court Justice," he said. "Therefore, this vacancy should not be filled until we have a new president."

The American people, of course, already did have a voice in the selection of Scalia's replacement. They reelected Barack Obama to office in 2012. But they also made Mitch McConnell majority leader in 2014.

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