Revisiting the real issue

Not too long ago, I raised the issue of what the upcoming Presidential election is going to be about. The answer still hasn't been cleared up, but there is one 20-ton gorilla that's making tremendous waves now: the Supreme Court. In its current form, the Supreme Court has demonstrated a remarkable willingness to give the President a lot of leeway on a number of matters (including the handling of "unlawful enemy combatants," although they are revisiting that issue.) Furthermore, there is a clear ideological split, with an abnormally high number of 5-4 decisions (the same 5 outvoting the same 4.)

The Supreme Court gained a lot of support from the pro-life movement with their decision to uphold the ban on the D&X abortion procedure (aka "partial birth"), but in the grand scheme of things, I don't think it's nearly as significant as what has transpired this week. The biggest, of course, was the ruling on the unconstitutionality of affirmative action programs to promote racial diversity in schools. Almost as big was the ruling overturning over 90 years of antitrust law in allowing manufacturers to set "price floors" on goods.

These developments are staggeringly huge, and staggeringly controversial. Depending on your point of view, the affirmative action ruling either set the stage to further equality in race relations, or it set the civil rights movement back 40 years. Only time will tell. What I do know is that it opened a floodgate of righteous indignation and strong condemnation among (primarily Democrat) Presidential candidates. This is the "let's all hold hands and sing Kumbaya" issue politicians love: take a strong stand against an unpopular legal issue, turn it into a near-crusade, make it your rallying cry. You get to turn your attention away from controversial issues like immigration reform and your inability to influence the administration and show leadership and empathy and other similar virtues in a very safe environment. It won't help Clinton over Obama, but it most certainly will help Clinton over Giuliani or Thompson.

The other thing it does is bring sharply into focus just how critical it is that the Supreme Court be taken into account during a Presidential election. Here are a few fun facts for you:

John Paul Stevens is the oldest member of the Supreme Court at 87 years of age. He was appointed by Ford in 1975. Many Supreme Court observers believe he is waiting to retire until a Democrat is elected President, although that's not a sure thing.

Antonin Scalia (who is third-oldest at 71), Clarence Thomas, Samuel Alito and John Roberts overwhelmingly tend to vote as a bloc. Three of the four were appointed by a President Bush (both H.W. and W.), Scalia was a Reagan appointee. Scalia is considered the strongest jurist of the group, but is also very ideological. He occasionally flashes an independent streak. Alito is the most likely in this group to give a death row appeal a hearing.

Stevens, Ruth Bader Ginsburg (second-oldest at 74), David Souter and Stephen Breyer also tend to vote as a bloc, but not quite as rigidly as the Scalia bloc. Stevens is easily the most independent-minded justice, and I believe is the Court's most consistent dissenter.

Anthony Kennedy is the "odd man out." A Reagan appointee, he has historically been a "soft" member of the conservative wing of the court. While he usually voted with that bloc, he has gone the other way on occasion. Today, as Kennedy goes, so goes the Court: his vote is the swing vote.

All of this matters because it is very likely that Stevens will retire within 5 years, and fairly likely that Scalia, Kennedy and/or Ginsburg will retire within 10, depending on the political climate. The mere fact that so many decisions now are 5-4 decisions means that the Supreme Court will be a very real battleground in the next 2 Presidential elections.

Rewind to 2000

In the aftermath of the 1996 election in which Bill Clinton handily beat Bob Dole, Republicans immediately started planning for the inevitable 2000 showdown against Al Gore. Gore's candidacy was practically a given, and the GOP knew they'd need to field a strong candidate. Almost immediately, George W. Bush's name rose to the top of the list (this was in very early 1997, I believe, and possibly even earlier.) Bush had his infrastructure and campaign team together very early and was able to hit the campaign trail early and hard. In early 1999, John McCain made things interesting, but the GOP was quietly already married to Bush. I still think McCain could have won a 3-way election among himself, Bush and Gore, but campaign law being what it is, it didn't play out that way.

Fast forward to November, 2004. George Bush wins re-election over John Kerry, and it's already understood that Hillary Clinton is the leading Democrat candidate for the 2008 election. She has her contacts and her husband's contacts, she's been through two presidential campaigns already and she has a lot of resources. Her war chest has been building for a long time - I have to believe it's been building since as early as 2000 or 2001. Barack Obama is making things interesting, but his infrastructure isn't nearly as well-constructed, well-funded or experienced as Hillary's. Sure, there are some parts of the Democrat Party who don't approve of her, but her act is together and she's presenting herself very well as a polished candidate. More importantly, she's being taken seriously as "the" candidate by the mainstream press.

It's pretty much reached the point at which the nomination is Clinton's to lose, rather than to win.

My kingdom for a viable candidate!

Dick Cheney has decided he's not a member of the Executive Branch of the United States government. George W. Bush has decided he doesn't need to answer to the federal government's watchdog to ensure classified materials are being handled properly. Not only do they think they're above the law, they flaunt it openly. And the Democrats still can't exploit it. Recent opinion polls show that the public is just as disgusted with Congressional Democrats as they are with Republicans across the board.

Up until now, it's almost been a fait accompli that the Democrat candidate would win the White House (at least, if you believe the word on the street, which isn't always the best idea.) At this point, I don't see Hillary not winning the Democrat nomination, but her status as a Senate Democrat (among other things) will come back to haunt her. Meanwhile, Giuliani's campaign has suffered a series of setbacks: his South Carolina campaign chairman's indictment on cocaine charges, his skipping Iraq study group meetings and the defection of successor Michael Bloomberg away from the GOP have all hurt his standing. His relationship with accused molester priest Msgr. Alan Placa doesn't help matters at all, either.

In the national polls, Giuliani still seems to be holding his own, but recent polls in Iowa and South Carolina are sobering: a Mason-Dixon poll from 6/13-6/16 has Romney and Thompson 1 and 2. Even more stunning is that McCain dropped all the way from around 25% at the end of May to 6%. In Mason-Dixon's South Carolina poll (same dates), Thompson leads Giuliani 25-21, with McCain down to 7%. And the Mason-Dixon poll (6/20-6/22) for Nevada shows Thompson and Romney ahead of Giuliani there, as well.

As I mentioned previously, elections are all about numbers: a candidate is less interested in a raw number of votes and more interested in winning states and the attendant voters for the conventions/Electoral College. The way things look right now, both Thompson and Romney are poised to gain early momentum in some high-visibility early states - the sort of momentum which could mobilize supporters and establish one of them as the early favorite.

Giuliani has a difficult battle ahead of him. As for McCain, I think his candidacy is in much more serious trouble than he realizes.