Can Democrats replace Ginsburg?

Supreme Court Justice Ruth Bader Ginsburg, in an Elle magazine interview, announced she would not retire because, “[Obama] could not successfully appoint anyone I would like to see on the court… So anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided.”

Several commentators responded to Ginsburg’s comment with skepticism. Harry Enten at Five Thirty Eight said, “Consider me misguided. Chances are the Senate would approve a justice like Ginsburg.”’s Ezra Klein insinuates that Ginsburg underestimates Democrats’ ability to alter Senate rules. These are all interesting pieces you should read if you have not already. But they are missing some critical points in the hypothetical scenario of replacing a Supreme Court justice.

Today’s Senate politics are the result of a long, downward procedural spiral. Filibuster scholar Steven Smith calls it the Senate Syndrome. In recent years minority parties have increasingly used procedural privileges to obstruct business. Majorities (from both parties) summarily responded with hardball tactics that increasingly exclude the minority party.

This is a relatively recent development. The Senate’s increasingly partisan process can be traced back to the very late-1980s/early-1990s, but really it has only recently begun to fully blossom in the last 15 years. The last decade of Senate politics is arguably the least cooperative, most partisan in its history. That is not to say past policy disagreements were not stark in previous generations. But today’s obstruction and procedural hardball is unmatched.

This has several implications for Ginsburg or future Supreme Court nominees. First, the next Supreme Court confirmation fight will not be the like the others. While confirmations have been made in this partisan environment (Justices Sotomayer, Kagan, Alito, and to a lesser extent Roberts), more recent nominees have faced more partisan opposition. Comparing a Ginsburg replacement debate to any confirmation debate in the last 30-years doesn’t really work. Very heavy-handed partisan tactics have become commonplace. Maneuvers such as routinely filling the amendment tree to prevent minority-sponsored amendments, using 60-vote thresholds to pass amendments (or better put, block unwanted amendments), and the ubiquity of the filibuster are just a few hallmarks of this very-partisan Senate. Understanding the confirmations of past judges is helpful. But in all likelihood the next confirmation debate will be an entirely different animal.

The nuclear option, invoked last November, has complicated future confirmations. Majorities have yet to test the waters on a Supreme Court nomination since last year’s filibuster reform. It is entirely unclear how the minority will react. Senate Republicans retaliated after cloture was changed but only modestly. Republicans delayed votes, extended debate, and have generally refused to cooperate when Reid has tried to expedite executive and judicial confirmations. These delays have not been devastating; however, they are certainly an indication of how the minority has reacted to the nuclear option. They have slowed the process to the extent that they can. If they remain in the minority (which is not likely), they will not likely back down.

Such a response could have major consequences though. As Klein points out, violently reacting against a well-qualified candidate could spur further filibuster reforms and shut the minority out of all confirmations. He further argues this is a fundamental miscalculation on Ginsburg’s part.

Despite the fact a precedent now exists to change the filibuster rules by a majority vote, this drastically oversimplifies the situation. Reforming a rule on the magnitude of cloture is no easy feat. Even if it requires only a majority vote, political support must be garnered and fought for. For example, the nuclear option was not a reform that simply came into being in November of 2013. In fact, some form of the rule change emerged as early as 2005. Rumors of reform again emerged in 2009, 2010, 2011, and 2012. Many were certain filibuster reform would occur on the first day of the 113th Congress. However, it wasn’t until a year later that the nuclear option was actually used.

Google trends graph of filibuster rules searches.

Google trends graph of filibuster rules searches.

The nuclear option took years to develop. It was not a simple flip of the switch. Many Democrats such as Sens. Donnelly (D-IN), Feinstein (D-CA), Pryor (D-AR), Reed (D-RI), and Levin (D-MI) were not convinced that going nuclear was a good idea. Reform-minded members had to convince their colleagues this change was necessary. This took years. And finally, even when the caucus was convinced of the need for reform, changes to Supreme Court confirmations was too much to stomach for many Democrats. Therefore, it is unlikely Democrats could simply change the rules again. That kind of move was too extreme for the majority to stomach last year and that likely hasn’t changed to a significant in the time since.

That said Democrats are becoming more hawkish on filibuster reform through attrition. Of the nine, or so, reluctant Democrats from this past Congress, Sens. Baucus (D-MT), Johnson (D-SD), Rockfeller (D-WV) and Levin (D-MI) will retire from the Senate this January or have already left. This is significant but possibly insufficient. A one or two vote majority in the 114th leaves very little margin for error. There are enough reluctant Democratic senators left to prevent another bold nuclear maneuver. If the next filibuster change is anything like other major rules reforms, this is a process that will likely take years.

If there was ever an opportunity to appoint somebody “like Ginsburg,” now would be as good a time as any. However, that isn’t because the Senate has allowed similar nominees in the past or because the majority would quickly reform the rules. It’s because Senate partisanship is likely to get worse in coming years. In other words, the chances of confirming more liberal or conservative justices will continue to dim. Unless the political environment or the rules change, Supreme Court nominees are likely targets for obstruction, if for no other reason than this is one of the last places a minority can actually use leverage on opposing administrative nominees.

Ginsburg is probably right that Obama does not have the gravitas or the political support in the Senate to nominate someone like her. However, it is unclear any future president will enjoy enough political capital to nominate the kinds of justices that currently sit on the court in the current environment and under the current rules.

| Leave a comment

Congress out of session does not mean Congress isn’t working

The Fix blog at the Washington Post has an article arguing that since 1978, Congress has only worked a full week 14% of the time. This is a common—and extraordinarily misleading– jab at Congress. While it is an easy to criticize an institution that frequently makes itself an easy target, it’s a disservice that unnecessarily undermines trust in government.

First, it oversimplifies lawmakers’ jobs. Members of Congress have two jobs: represent their constituents and govern. These responsibilities do not always go hand in hand. Representing constituents means speaking with them in person, holding town hall meetings, organizing rallies, attending to casework, and otherwise being present in the district or state they represent. This is not easily done from a Washington office. Supporting or opposing legislation is an important part of a members’ job. However, it does not come close to capturing members’ range of responsibilities. This is why even when Congress is out of session, members are at work. Most members of Congress work a 5-6 day week. The representative aspect of Congress’s job is almost completely ignored in these statistics.

Second, the chambers rarely work in concert. The article concludes on this note: “It is hard to escape the implications of Friday being the weekday on which the House and Senate are least commonly in session.” Actually, both chambers do not need to be in session at the same time. It is not a requirement to legislate nor are the chambers routinely working on the same issues.

The House and Senate are independent, uncoordinated bodies. They work on different issues at different times and most often do not coordinate their schedules. For example, last Thursday (September 18th) the Senate passed 19 bills on its final work day of the week. Among the bills it passed were the Debbie Smith Reauthorization Act (H.R. 4323), Paul D. Wellstone Muscular Dystrophy Amendments (H.R. 594), and the Prevent Sex Trafficking and Strengthening Families Act (H.R. 4980). Those bills passed the House on April 7th, July 28th, and July 23rd, respectively. The House did not need to be in session for those bills to pass the Senate, then go to the President. The only time the two chambers need to be in session at the same time is if there is a pending deadline Congress needs to meet (e.g. the debt ceiling, avoiding government shutdown, etc). Otherwise, being in Washington at the same time is not a prerequisite to enacting laws.

Lastly, there is no evidence to suggest more legislative days leads to more legislation. The 111th Congress was in session fewer days than the 112th Congress. Having fewer legislative days did not prevent the 111th Congress from being among the most successful in congressional history while the 112th Congress was the least productive since the Civil War. Similarly, the Senate has often worked more days than the House. However, the Senate routinely passes fewer bills than the lower chamber. It is in session longer because its legislative process requires more time for bills and motions to move through the legislative process.

Congress has a lot of problems. Being in session at the same time or having longer work weeks isn’t one of them. The 113th Congress has been extraordinarily unproductive, but fewer days in session have little to do with that.

| Leave a comment

Recess is Over: Congress (will be) back in Session.

Congress returns from recess next week after an unexpectedly successful final week in July. Congress passed a significant Veterans health bill and temporarily extended the Highway Trust Fund. While there were breakthroughs, Congress failed to find common ground on several issues. With only 12 legislative days left before the election, here is what’s on tap.

Continuing Resolution. Congress will pass a short-term continuing resolution (CR) in the next two weeks, delaying action on an omnibus appropriations package until the lame duck session. This should be among the first issues addressed by the Congress if incumbents want to avoid the disaster that occurred last year when many parts of the federal government shut down for 16 days. A shutdown five weeks before an election could well lead to a number of congressmen and senators being unemployed in 2015. Despite the incentives to pass the CR quickly and quietly, other issues are creeping into the fold. With significant Republican disagreement on the border crisis and the Export-Import Bank’s temporary extension, extra provisions may be attached to the must-pass CR. If President Obama decides to implement changes that amount to immigration reform via executive order, the CR may become a more contentious debate.

Export-Import Bank Reauthorization. Addressing the Export-Import Bank charter is unavoidable this month. The bank’s charter expires on September 30th and Congress’s action or inaction on this front will make headlines. The bank’s existence highlights the now frequent divide between immoderate and mainstream Republicans. More conservative members, who now include high-ranking Republicans such as McCarthy (CA), Scalise (LA), and Financial Services Chair Hensarling (TX), oppose the bank’s reauthorization. Meanwhile, business groups such as the Chamber of Commerce, the National Association of Manufacturers, among several hundred others, have sent several heavy-hitters to advocate for the bank. Reports indicate that a short-term extension is being negotiated between Boehner and Hensarling. The Senate has already begun the process of bringing its reauthorization to the floor. However, it is unclear how and when the reauthorization will make its way through the process before the 30th. Any provision including Ex-Im’s extension will face opposition. Therefore, it will need to be done quickly as it will almost certainly face a filibuster in the Senate, which could delay action for two weeks.

Immigration supplemental and DACA. The House and Senate had widely different ideas on how to address the border crisis. After a failed first attempt, the House passed a $694 million in supplemental appropriations along with a bill restricting executive leeway on deferred action on deporting child arrivals (DACA). The Senate overcame a filibuster on a $2.7 billion dollar bill only to fail on a procedural vote the following day. Since then, the child migrant crisis has virtually disappeared from the news cycle. Without any natural momentum from the media, lawmakers would have to take it upon themselves to generate energy for compromise. With elections looming and a packed legislative schedule, a compromised supplemental funds package would be a big lift. Action on this front is more likely to happen in the lame-duck session if it happens at all this Congress.

ISIS/ISIL AUMF. The House and Senate will likely debate a resolution authorizing the President to deal with ISIS/ISIL.  The fly in the ointment is that President Obama will need to ask Congress for more authority before Members will actually pass such a bill.  The President has annoyed Democrats in the Senate as well as Republicans with his unartful comments regarding the escalating situation in the Middle East.  But both Chambers would be loath to deny him the latitude to bring to justice the barbaric killers of journalists.

Legislative Campaigning – Bills that could get votes but won’t pass the other chamber:

In the House: shaming the Senate. Speaker Boehner and Majority Leader McCarthy have outlined a schedule intended to put pressure on Senate Democrats leading up to the election. They plan to package several job and energy bills previously passed individually earlier this Congress into a House-omnibus, of sorts. This “closing argument” will increase pressure on the Senate’s Democratic leadership as well as vulnerable Democrats from energy states such as Mary Landrieu (LA), Mark Begich (AK), and Mark Udall (CO). Like the previous bills, this package will not see the Senate floor. However, Minority Leader McConnell (KY) may make it a point to mention the bill as often as possible.

In the Senate: minimum wage, pay equity, and student loans. Much like the House, the Senate will likely schedule their own votes on how to improve the lives of voters.  Instead of the House’s job growth and energy bills, the Senate may focus on minimum wage, pay equity, and lower interest rates on student loans.  In addition, there is also an effort to vote on legislation to stop the practice of US companies relocating in foreign countries solely to avoid taxation. The recent talks between Burger King and Tim Hortons have brought this issue to the forefront for many politicians, particularly Senate tax writers. Again, just like the House agenda, these bills have no chance of passing the other chamber even if they did overcome a filibuster, which they won’t. This Senate agenda is about votes in November, not passing bills in September.

One thing is certain: Congress will not address all of these problems before the election. In fact, it may only address one or two of these issues. In these final weeks before November, leaders will orient the legislative process toward campaigns rather than policy. Don’t expect much before November 4th. 

Mark Harkins co-wrote this post.

Posted in Policy Agendas | 1 Comment

Quantifying Bill’s Value to Hillary’s Campaign (Part 2)

In a recent post, I explored whether it’s possible to quantify Bill’s value to Hillary Clinton’s campaign (see here).  In other words: Do voters reward (and punish) Hillary Clinton based on their opinions of her husband?  If so, it could have major implications for the outcome of the 2016 presidential election.

Looking at survey data from the American National Elections Study, the answer would seem to be an emphatic “yes.”  Even when we take into consideration various reasons why voters would hold a favorable or unfavorable opinion of Hillary Clinton (such as party identification, ideology, gender, etc.) we find that Bill has a discernible positive effect on Hillary’s approval rating.

Perhaps most notable is just how much Bill Clinton matters according to the results.  In particular, the data suggest that when Bill’s approval rating increases by 1 unit, Hillary’s approval increases by just under ½ in the same direction. 

For today’s post, we’re going to re-examine the same topic with additional data.  Indeed, the prior post left some important questions unanswered.

First, the original analysis examined opinions of Bill and Hillary Clinton in 2000.  It’s certainly possible that the so-called “Bill effect” is unique to this particular time period (perhaps because Bill Clinton was president at the time and the economy was performing quite well).  Simply put, we want to know if the finding is generalizable to more recent conditions.

Fortunately, the ANES asked the same questions in 2008 (when Hillary Clinton ran for the Democratic nomination) as they did in 2000 (when she was First Lady).  So, we can easily run the same analysis as in the prior post and see if the “Bill effect” holds.  Here’s the results:


I’m skipping the statistical details, but the regression model confirms the existence of the “Bill effect” in 2008.  As with the prior results (see here), it would seem that that there is a very strong positive relationship between opinions of both Clintons .  It’s also the case that this effect is statistically significant. 

But what about the act of voting?  Isn’t this the most important outcome?  So far, we’ve only looked at opinions of both Clintons.

Fortunately, the ANES asked respondents about their vote choice in the 2008 presidential primary.  So, we can once again run the exact same analysis expect that, this time, we’re modeling whether someone voted for Hillary Clinton.  Here’s the results:


According to the results, the “Bill effect” exists with respect to voting behavior as well.  In fact, the results indicate that Bill Clinton’s effect is larger in magnitude than any other predictor.  Keep in mind that this is specific to the 2008 presidential primary, where we would expect the effect of economic conditions and party identification to be lower.

According to the results, a 25-point increase in Bill’s favorability rating (out of 100) increases a respondent’s probability of voting for Hillary Clinton by about 10%.  Substantively, therefore, the effect is meaningful (as it was earlier).

Lastly, perhaps there are differences in who is susceptible to the “Bill effect.”  For example, it may be interesting to know whether Democrats, Republicans, or Independents are most likely to be persuaded to vote for (or against) Hillary Clinton based on their opinions of Bill Clinton.

I created the figure below by simply interacting Bill Clinton’s favorability with a respondent’s party identification and re-running the analysis.  Higher values in the figure (in red) indicate a larger “Bill effect” for respondents in the respective group.  We see two interesting patterns. 


First and foremost, Bill Clinton’s effect on a respondent’s probability of voting for Hillary Clinton is strongest for independents.  Roughly speaking, there appears to be a curvilinear effect.  For “weak” and “strong” partisans on both sides of the aisle, the effect is smaller in a relative sense.    

Second, Bill Clintons’ effect on Hillary’s vote probability is larger for Republicans than it is for Democrats.  In fact, for “strong Democrats,” Bill Clinton has “no effect” at the 0.05 level (as revealed by the fact that the confidence interval just crosses the zero line). 

Based on the results, we might conclude that Hillary Clinton’s campaign should get Bill in front of independents and Republicans rather than steadfast Democrats.  Indeed, Bill could be a potent weapon in 2016… if used properly.

Posted in Elections, Political Behavior, Political Parties, The Presidency | Leave a comment

Selection Bias and Voluntary Drug Testing Part II

In August of 2011, a post of mine addressed the policy of drug testing welfare recipients. At that time, much was made of the fact that Florida’s mandatory drug testing policy produced just a 2% failure rate.  From this statistic, Tampa Bay Online concluded:

The initiative may save the state a few dollars anyway, bearing out one of Gov. Rick Scott’s arguments for implementing it. But the low test fail-rate undercuts another of his arguments: that people on welfare are more likely to use drugs.

Irrespective of whether the policy of drug testing welfare recipients makes sense, we just cannot draw these kinds of conclusions from the data.  Indeed, the data suffers from a problem known as “selection bias.”  Simply put, individuals most likely to fail a drug test are not going to take the test.  We just can’t generalize about the entire population of welfare recipients from this severely self-selected sample.

In the current version of this story, Utah has just published it’s version of the same data. Upworthy has the results in a not-so-subtle pie chart.  Here are the findings:












Yeah.  Wow.  Again, it’s reasonable to conclude that this policy may be “unfair” or a “poor use of taxpayer dollars” given the low rate of positive results.  But unfortunately the author of the post draws the same faulty conclusion as in the Florida case.  For us to conclude that welfare recipients (the population of interest) have a lower incidence of drug use compared to the state, we would need a random sample where every individual in the population has an equal, non-zero chance of being selected.  We don’t have that here.

| Leave a comment

Quantifying Bill’s Value to Hillary’s Campaign (Part I)

In presidential elections, relationships matter. 

For example, political scientists know that the relationship between economic conditions, the number of causalities in war, and the incumbent’s party affiliation explain the bulk of presidential election outcomes.

In the 2016 presidential election, however, there is another “relationship” worth keeping an eye on.  But rather than the correlation between two variables, this relationship is of the social variety.  I’m referring, of course, to the marriage of Bill and Hillary Clinton.

Pundits on the left claim that Bill Clinton is an asset to Hillary because he brings legions of faithful supporters and has a high approval rating.  Pundits on the right claim that Bill Clinton is a liability because he reminds voters of the Clintons’ personal affairs.

But when we strip this rhetoric down to its core, both sides are making the same empirical point: As goes Bill, so goes Hillary. 

But is it true?  Are the Clinton’s’ “married” in the minds of voters such that the opinion of one affects opinions of the other? 

In the figure bellow, I plotted approval ratings from (here and here) and (here) from 1992 to 2014 and created smooth trend lines for both Clintons.  According to the figure, the answer would seem to be very clearly “yes.”  We can see that Bill’s approval rating moves up and down alongside Hillary’s approval rating. 


Surprised?  No?  Let’s get a little deeper into the data.

For starters, two variables can move up and down together without being causally related.  In fact, causal relationships are notoriously hard to identify in non-experimental data (see an old post of mine on the relationship between Nickleback, Herpes, and Obama’s vote share in 2012).  Indeed, other factors could be causing the above patterns.  In other words, it’s possible the above patterns are a “spurious relationship.”  But also, the question here is about an individual-level relationship (what happens in the minds of voters).  Inferring an individual-level relationship from aggregate data can lead to what’s known as an “ecological fallacy.” 

In short, we need better data.

Fortunately, the American National Elections Studies (ANES) has been conducting surveys for every presidential election from 1948-2012.  We can easily download the ANES dataset and quickly produce some answers to this question.

Let’s explore the relationship between opinions of Bill and Hillary Clinton in 2000.  Respondents’ opinions are measured using a “feeling thermometer” where a score of “100” indicates the highest possible approval of the Clintons while a score of “0” indicates the lowest possible approval.  A simple regression analysis will tell us if these two variables are indeed related and whether that relationship is statistically meaningful or not.  Here are the results:


I’ll skip the boring statistical details, but basically the regression model confirms what we see in the approval data.  It would seem that that there is a very strong positive relationship between opinions of Bill and Hillary Clinton (indicated by the number 0.77 in the column “Coef”).  We can also see that this relationship is statistically meaningful (indicated by the number 38.95 in the column “t”).  In sum, as Bill’s approval goes up, Hillary’s increases, and as Bill’s approval goes down, Hillary’s declines as well.

But what about all the “other factors” that could be causing opinions of both simultaneously?  For example, perhaps both are caused by views of Democrats in general, raw party identification, or the performance of the economy.  In the social sciences, we call these “control” variables.  

In the model below, I added five control variables (opinions of the Democratic Party, opinions of the economy, a respondent’s party identification, ideology, and gender).  Here are the results:


Among the control variables, Democrats, respondents with a favorable opinion of Democrats, and women all have a higher opinions of Hillary Clinton.  None of this is surprising, but again, it’s important to account for these relationships.

But what’s most notable about the results is the magnitude of Bill’s effect.  Indeed, from the above results we can quantify Bill’s value to Hillary’s campaign (as the title of this post suggests)  In particular, because the coefficient on the “Bill” variable is 0.465, the model indicates that as Bill’s approval rating increases by 1 unit, Hillary’s approval increases by just under ½ in the same direction

So while it’s not a 1-to-1 relationship, Bill has a sizable effect on how people view Hillary.  Moreover, we when look at the last column on the right (labeled “beta”), what we see is that Bill’s effect is larger in magnitude than any other variable in the model.  So not only does Bill matter, but he matters quite a bit.

Interested in one more model?  Actually, you don’t have a choice. 

For some additional context on the magnitude of Bill and Hillary’s “statistical” relationship, I wanted to see what happened if we used the same model to predict opinions Al Gore.  Here are the results:


We would expect Bill Clinton to have an effect on Al Gore’s approval rating given that they shared the White House together (remember, these data were collected in 2000).  And indeed, that’s what we see in the results.  However, what’s notable is that the magnitude of this relationship has decreased by about 30% from what the same model predicts regarding Bill’s effect on Hillary (from 0.465 to 0.320).  In short, the statistical relationship between Bill and Hillary’s approval ratings is larger in magnitude than the statistical relationship between Bill and his Vice President. 

What’s the big takeaway?  In short, yes, opinions of Bill Clinton seem to sway opinions of Hillary.  While we can’t say definitively this is causal (for example, causality could go the other way, with opinions of Hillary could be affecting Bill’s), this relationship persists even when we control for various factors.  Perhaps most importantly, the effect is surprisingly large in magnitude.  It would seem that Hillary earns about a ½ increase or decrease in her approval rating for every 1 unit change in Bill’s approval rating.  In the 2016 campaign, the so-called “Bill factor” would matter quite a lot.  

For next week’s post:

What happens after Bill left office?  Does this relationship exist in, say, 2008?

Does this statistical relationship translate into actual votes?

Is Bill’s effect strongest for Democrats, Independents, or Republicans? 

Posted in Political Behavior, The Presidency | 2 Comments

No, the Senate did not block the House Border Bills – Yet

The Washington Examiner reported today, “in a matter of minutes, Senate Democrats on Tuesday blocked a pair of House bills that would have provided nearly $700 million to deal with the surge of immigrants on the southern border and blocked President Obama from expanding an anti-deportation program.”

Problem is Senate Democrats didn’t block the bill. In fact, they haven’t yet even delayed the bill. What occurred today was a routine Senate scheduling process.

Here’s why: Senate rules require all bills (and J.R.s) be read twice before further proceedings. In almost all cases, further proceedings would be to refer the bill to its committee of jurisdiction.

However, there is a procedural trick that allows the Senate to bypass committees and place the bills directly on the calendar where the full Senate may consider it. If a Senator (normally the majority leader or a Senator acting on his behalf) asks unanimous consent for a second reading and objects to further proceedings, the bill bypasses referral and moves directly to the calendar. This process actually expedites consideration of bills. In today’s Senate, most big bills are considered under this process. Rather than work through committee, senators reach agreements on legislation and bring it straight to the floor.

In other words, Democrats (in this case, Senator Coons) have not yet blocked the House border supplemental and deferred action bills. Rather, they have begun the process will allow those bills to come before the full Senate more quickly than if it was referred to committee. So both bills will be available for Senate consideration on the first day the Senate returns from recess.

Of course, this process in no way guarantees the Senate will actually consider either of these pieces of legislation. But it is important to note the Senate has not blocked the House bills – at least not yet.

| Leave a comment