Summer Lays Foundation for Fall Contests

As Congress returns from its July 4 recess, recent events reinforced the belief that the November election will be filled with surprises. So far we have learned:

1. In certain cases, being an incumbent has not helped. Rep. Bob Inglis (R-SC) is the latest incumbent to lose his reelection effort; however, the anti-incumbent fever may not be as strong as indicated in the media.

2. Republicans are still expected to make majors gains this fall.

3. The Republican Party is hoping the primary results in South Carolina where an African American and Indian American were nominated to represent the party in a congressional and gubernatorial race will demonstrate the party is more racially and ethnically diverse.

4. Ron Paul and Sharron Angle, Republican Senate candidates and Tea Party Favorites in Kentucky and Nevada respectively, must prove their platform will appeal to a broader audience.

5. Unions will seek to push Democrats to the left as the Tea Party is pushing Republicans to the right.

6. Democrats run the risk of alienating Hispanic voters by focusing on a punitive approach to immigration reform instead of the type of comprehensive reform promised by President Obama during his campaign.

Inglis Defeat

Rep. Bob Inglis (R-SC) is the latest incumbent to lose his reelection bid.
Inglis joins Sen. Robert F. Bennett (R-Utah), Sen. Arlen Specter (D-PA), Alan B. Mollohan (D-WV), and Rep. Parker Griffin (R-AL) as incumbents who have lost primary battles. His major crime – he supported the Federal bailout of the banking industry and opposed the Iraq troop surge in 2007. Ironically, he was recently honored for his “consistent support of conservative principles on a wide range of issues” by the American Conservative Union. He has a lifetime rating of 93.4 percent with the group.

The loss by Inglis is another example of the volatility of voting patterns; however, some writers are not convinced being an incumbent is a bad thing. While anti-incumbent fever is high this election cycle, it is far too simplistic to assume anger against sitting Members of Congress is driving this election cycle. Stuart Rothenberg, a political analyst based in Washington, DC points out that 98 percent of incumbents seeking reelection has been renominated.

Anti-incumbency may be a factor in voter anger but the faltering economy is driving their anxiety. The war, growing frustration with immigration, the oil spill, and lingering uneasiness about the impact of health care reform continue to create opportunities for Republicans to exploit in their quest to recapture one or both chambers of Congress.

Republican Gains still expected to be high

Republicans are hoping voter discontent will result in major gains for their party. There are some observers holding onto the belief Republicans will regain control of both the House and Senate. However, elections are not an exact science. Much can happen between now and the election and Republicans have not fared well in the special elections held this year which they were expected to win. Additionally, the infighting within the Republican Party has not stopped. Republicans can’t seem to stop putting their feet in their mouths. The remarks by Party Chairman Michael Steele on Afghanistan created an unwelcomed amount of bad publicity for the party. It has forced prominent Republicans to distance themselves from the remarks and place a spotlight on the trials and tribulations of Steele’s tenure as party chairman.

Steele is the Republican Party’s highest profile minority who has alienated various elements of the party faithful. Due to dissatisfaction with Steele’s leadership, Republican donors have bypassed the party and have contributed to other entities such as the Republican Governors Association headed by Haley Barbour, Governor of Mississippi. There are some Republicans who feel Steele’s difficulties will adversely impact their efforts in November.

The Republican Party appeared poise to waltz to a landslide victory in November after the health care debate was completed and growing concerns about the deficit increasing forced Democrats to scale back some of their initiatives. The Elena Kagan nomination hearings were expected to rally the Republican base; however, her hearings were uneventful.

While Republicans are expected to make gains this fall, politics is a fickle profession and things can change very quickly. When Charlie Crist decided not to seek the Republican nomination in Florida and run as an independent, most observers predicted he would lose badly and crowned Marco Rubio the next senator from Florida. Rubio was seen as a rising star within the Republican Party and was a darling of the Tea Party. He was expected to easily defeat the Democratic nominee, Rep. Kendrick Meek. Now, Crist is poised to stun the political world and is favored to win the vacant Florida Senate seat as an independent. Assuming he wins, polls show he is comfortably ahead of both Crist and Meek, and he will likely caucus with Democrats and be a major power broker in Washington.

In Nevada, most “experts” were drafting the political obituary for Majority Leader Harry Reid (D). Polls were showing voter dissatisfaction with him which made him a primary target for Republicans to win back that seat. However, Sharron Angle’s Republican primary victory in Nevada has caused many “experts” to now believe Reid will survive his reelection bid. Angle has some within her own party suspicious that her views are in sync with voters. Angle is strongly supported by the Tea Party. She and the other Tea Party candidate, Ron Paul, seem to be avoiding “mainstream” media as much as possible to avoid too much scrutiny. Paul came under fire for suggesting the Federal government had no right to prevent private businesses from discriminating against any one and is the only Republican to support Steele’s Afghanistan remarks.

Two new stars are about to shine within the Republican Party as Nikki Haley seeks to become the first woman of Indian descent to become governor of a state. Haley is representative of a wave of individuals of Indian descent flexing their political muscle. There are at least eight individuals of Asian Indian descent seeking electoral office this year. Haley, like Bobby Jindal in Louisiana, will be prominently featured by Republicans to represent the new diversity of the party.

Joining her will be Tim Scott who defeated the late Senator Strom Thurmond’s (R-SC) son Paul in a congressional race. Scott is poised to become the first African American Congressman since J.C. Watts (R-OK) decided not to seek reelection in 2002.

Union to Flex its Muscle, Hispanic Impact Unclear

Unions were unsuccessful in defeating Sen. Blanche Lincoln (D-AR) in her primary race this year but have positioned themselves to be the “Tea Party” players of the left. They spent millions of dollars in Arkansas to defeat Blanche but more importantly sent a clear message to Democrats they will not tolerate any middle to the right democratic candidates. It will be interesting to monitor their efforts within the Democratic Party and see how it mirrors the actions of the Tea Party. The Tea Party will continue to impact the Republican strategy heading into the fall. An interesting development occurred recently when Politico reported that Ginny Thomas, wife of Supreme Court Justice Clarence Thomas, had raised money to position herself as a bridge between the Tea Party supporters and “establishment” members of the party. This is reflects the efforts and resources advocates will expend this fall to influence the outcome of this year’s election. The U.S. Chamber of Commerce is expected to spend as much $100 million to ensure Republicans win this fall.

Immigration continues to escalate into an issue which could prove detrimental to both parties. The administration has decided to sue Arizona over the law it passed which allows police to stop any one it believe might be undocumented. Oklahoma, South Carolina and Utah appear close to passing similar legislation. Each of the aforementioned states is considered a conservative state and it should not surprise anyone that they would consider enacting that type of legislation. For Democrats in Oklahoma, South Carolina and Utah, opposing that type of legislation could spell certain defeat. If the administration believes suing Arizona will compensate for not enacting comprehensive immigration reform, they could be in a for a major surprise this fall.

In Arizona, the size of the Hispanic population causes a person to assume considerable political risk by taking either a supportive or opposing position on the issue. Sen. John McCain (R-AZ) has historically enjoyed considerable support within the Hispanic community and has called for comprehensive immigration reform. However, since his failed run for president, he has become a hard-liner calling for deportation and stronger border enforcement. While Hispanics are as concerned about employment and the economy as other Americans, immigration is an issue which can be a determining factor for either party’s success this fall.

Observations on Hearings to Nominate Elena Kagan for the Supreme Court

The recent Supreme Court decision striking down gun control laws in Chicago and its suburb of Oak Park cast a spotlight on the Senate nomination hearing for Elena Kagan who is President Obama’s current nominee for a seat on the Supreme Court. The decision which stated Second Amendment rights to gun ownership extend to state and local governments can have a chilling effect on efforts to curb gun violence in many communities. It also highlights the magnitude of the decisions made by the individuals sitting on the Supreme Court.

As the Senate Judiciary Committee and then, by extension, the Senate deliberate on her nomination, there are a number of issues pertinent for housing and redevelopment professionals to understand as the debate proceeds.

Debate on Qualifications

Republicans are raising concerns about her qualifications since she has never served as a judge. They argue that her work as an attorney was mostly about policy, instead of deciding cases as a judge would. Those opposed to her confirmation will argue that Kagan is a "political activist."

Democratic supporters of the Kagan nomination will argue for Kagan to be confirmed based on her service as solicitor general. In that position, Kagan has been responsible for arguing cases before the Supreme Court. She has also served as dean of Harvard's Law School and held positions in the Clinton Administration.

The larger issue is not qualifications, it is politics. There is no requirement in the Constitution that nominees be judges. Of the 111 judges nominated since 1789, 40 did not have experience as judges (36 percent). These individuals were nominated by both Democrats and Republicans. Attacking the “qualifications” is one way opponents attack a nominee in the hopes of derailing the nomination. is the minority party’s way of trying to defeat the president’s nominee.

Debate over Judicial Philosophy

A second way of attacking a nominee is to gauge their judicial philosophy by reviewing their track record of cases. If a nominee has not been a judge, there is no track record of cases to find out how they will rule from the bench.

Because of the intense scrutiny given to the writings and decisions of a nominee, the practical result is that in order to get the nomination through the Senate, there is an incentive for presidents to choose individuals who have a similar profile to Kagan (talented lawyers and academicians, but not judges with a case record to defend). Speaking broadly, some conservatives believe that decisions of the court are limited to examining what the framers of the Constitution or legislators that enacted the law wrote and applying the terms to the facts of the particular case before them. These "strict constructionists" believe that other judges, who take a broader view of a judge's review, are “judicial activists,” and are improperly expanding the role of the judiciary.

More liberal judges assert that their role is not to just follow the text of the law but also the intent of the legislators and the reasonable inferences of the text.

As an example, “cruel and unusual punishment,” which is prohibited by the Constitution, meant one thing two hundred years ago. However, modern notions of what is “cruel” or what is “usual” have changed. What is a “speedy” trial? What does the “right to bear arms” mean as weapons get more and more sophisticated?

Moreover, it is quite difficult to amend the Constitution. If our notions of justice and equal treatment change over time (as they did with women’s suffrage and civil rights issues), or if technology advances in ways that the framers of the Constitution couldn’t possibly have anticipated (DNA evidence, for example), how should fundamental rights of U.S. citizens be decided?

On the other hand, how can judges, be they conservative or liberal, keep their political and personal opinions out of their decisions and avoid making up the law as they go along? Kagan will be asked to explain her philosophy on these issues.

Confirmation

Since Supreme Court justices serve for life, both sides recognize that the ability to nominate members of the federal judiciary is one of the most powerful aspects of a president's authority. In this particular instance, if Kagan, like Justice Stevens before her, sits on the bench until she is 90, she will be deciding cases until the year 2050.

Opponents of the Kagan nomination understand the stakes, and they are reluctant to let Kagan be confirmed without a fight. There's an old saying: "When you have the votes, you want to vote. When you don't, you want to stall." On the Kagan nomination, the Democrats want to vote.

There is not much serious doubt that Kagan will make it through the Senate Judiciary Committee hearing without a hitch. Kagan’s nomination has been supported by an array of individuals and interest groups, including former First Lady Laura Bush, 68 deans from major law schools around the country, and the American Bar Association.
Unless something surprising happens, it is expected that Kagan will field the questions from the Committee, be as bland as possible, and avoid giving her opponents ammunition. Kagan will likely be confirmed by the full Senate during the month of July.
Republicans will attempt to use Kagan as another example of Obama’s “socialist” agenda in the fall election.

Check back with the Blog for more information on the nomination and key legal issues facing housing professionals.


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