We Are All Federalists Now
05-29-2009
You may have read that Senator Jeanne Shaheen recently said she thought the issue of gay marriage should be decided in New Hampshire, rather than at the federal level. But she also declined to publicly state her position on the specific legislation currently pending at the State House. It is true that the question was a bit outside the purview of a press conference on her recent trip to Afghanistan and Pakistan, which is where the question was posed to her. But she had to know she would be asked about it at some point.
 
On the first issue of whether gay marriage should be decided in the states or at the federal level, this is one area where there seems to be increasing agreement among progressives and conservatives. I recall writing a post back in November 2007 on the issue of federalism and social policy, after hearing Republican presidential candidate Fred Thompson comment on Meet the Press that he would much prefer to have issues like gay marriage decided by governors and state legislatures. And, it should be no surprise to now see supporters of gay marriage focus on a receptive audience in New England, in an attempt to turn success in places like Vermont and Maine into a domino cascade of legislative victories in other states.
 
On the second issue of whether Senator Shaheen should have publicly stated her position on the current legislation, I will say that it has been fascinating to watch the ground shift so rapidly under the feet of Democratic officials, particularly those who have traditionally been considered moderate or centrist. Just as most elected Democratic officials got comfortable with the party’s default position of pro-civil unions, but anti-gay marriage – as did President Obama, Governor Lynch and Senator Shaheen to name just three – it now seems like the party is moving past that position to a fuller embrace of gay marriage.
 
I’m guessing that many Democratic politicians thought the default pro-civil unions only position would retain its currency for a much longer period of time than it has. So now we may see more of these officials carve out a new position based on a private/public dichotomy, in which they retain their personal opposition to gay marriage, but also acknowledge changing norms in the party (as Gov. Lynch has essentially done). Perhaps this is also where Senator Shaheen’s thinking on the issue is now, but we won’t really know until she tells us.
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Language Lab
05-28-2009
I have written a couple of posts now looking at the special language that infuses Supreme Court confirmation battles with all sorts of coded political meaning. In particular, I have suggested that supporters of Judge Sonia Sotomayor should be on the lookout for senators who find the potential for judicial activism to be troubling. It is in the deployment of these coded words and phrases that you will get the best early read on how opposition to her nomination is shaping up. On the other hand, I have also confessed to being unable to fully grasp the Obama Administration’s  notion of judicial empathy as a criterion for selecting a nominee.
 
I guess I wasn’t the only one struggling with this particular legal concept. According to today’s New York Times, the White House is dropping its use of this phrase in favor of a new one – judicial modesty. I bet the White House believes that modesty sounds like an antidote to the expansiveness of activism, which might help Sotomayor’s handlers better position her as a judicial moderate. In fact, modesty sounds a whole lot like moderate, and the dictionary tells me that both words are akin to the Latin word modus, or measure. And, as all of this underscores, measured speech is the order of the day in Supreme Court nomination battles.
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Posturepedic
05-27-2009
Now that President Obama has nominated Judge Sonia Sotomayor to the U.S. Supreme Court, we can brace ourselves for whatever confirmation battle may come in the next few months. These moments have the potential for more senatorial posturing than you will find at any other time in the legislative process.
 
In a post a few weeks ago, I wrote in anticipation of the nomination about that mother of all confirmation battle clichés, the claim that a nominee is likely to engage in judicial activism. I noted that this charge has been leveled so frequently on both sides of the aisle that it has lost virtually all of its meaning. The charge signifies little more than a general belief that the nominee does not share an opposing senator’s ideological worldview.
 
As word of the Sotomayor nomination spread yesterday, I prepared for Republican senators to also roll out another of my favorite confirmation battle clichés – the use of the word troubling, as in Senator X finds the nominee’s views on a particular subject to be troubling. This rhetorical device typically serves as a marker to denote potential opposition to the nominee on general ideological grounds. Senators wielding the term early in the process often use it as a placeholder for some more specific critique of the nominee to be developed once they determine where the biggest weaknesses in the nominee's record are located.
 
To illustrate my point, you can watch Republican Senator Jeff Sessions drop the t-word while discussing the Sotomayor nomination on television this morning. And, in fairness to my Republican readers, you might not be surprised to learn that Democratic Senator Chuck Schumer found “significant portions” of Justice Samuel Alito’s record “very troubling” during Alito’s confirmation process in 2006.
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The Safety Dance
05-26-2009
Over the long Memorial Day weekend, I continued to watch the fallout from last Thursday’s dueling national security speeches by President Obama and former Vice President Dick Cheney. Of particular interest to me was hearing both former Pennsylvania Governor and Homeland Security Director Tom Ridge, and former Secretary of State Colin Powell publicly identify themselves as proud Republicans who disagree with Cheney’s assessment that President Obama’s national security policies have made the country less safe.
 
As you would expect, Ridge and especially Powell have received some scorching criticism for their positions from the right wing of the party. What I find most fascinating (and a bit ironic) is that among their critics, Ridge and Powell’s status as moderates clearly trumps their standing as decorated veterans with significant national security experience. As a result, their assessments of Obama’s actions have been largely discounted by conservatives. This doesn’t strike me as particularly smart public relations given the broad appeal these two men could have in rebuilding the party. But it is a sure sign that the internal ideological fissures within the Republican Party are still a long way from closing.
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Enhanced Grilling Techniques
05-22-2009
I will be away from the website for the long Memorial Day weekend. I will be back on Tuesday, May 26th with new content for you. Have a safe and enjoyable holiday weekend. See you soon. -Dean
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A House Divided
05-21-2009
Large legislative bodies, by virtue of their close proximity to the grassroots, have the potential to very accurately reflect the diverse interests of the citizens they represent. This can often make reaching an actual consensus on specific policy recommendations a bit of a challenge. As a result, they sometimes inject uncertainty and volatility into the process in ways that surprise even the most seasoned observers. Such was the case yesterday, as Democratic leaders in New Hampshire’s House of Representatives found themselves on the losing end of a very close vote on the Gov. Lynch-amended gay marriage bill.
 
These leaders have put a largely positive spin on this outcome, depicting the setback as all in a day’s work, as part of the ongoing process of negotiation and compromise that defines the legislative process. There is some truth to this, and, as I told reporters yesterday, I still think the bill has a chance to pass. But in the wake of yesterday’s defeat, political elites seem to be having difficulty articulating the precise nature of the sticking point in the House. Does the Lynch language go too far? Not far enough? Is it redundant with preexisting protections in the state constitution?
 
I certainly don’t have an answer to these crucial questions yet, nor do I think the bill’s supporters have one. That will be their challenge going forward – to articulate the collective will of the chamber from within the diverse passions and interests that animate a large representative body. It is a challenge as old as representative democracy.
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Anti-Social
05-20-2009
Here is an update on an item I posted last week. In my earlier post, I had to scratch my head over the Republican National Committee’s pending resolution to tag the Democratic Party with a new moniker, the Democrat Socialist Party. Other than providing some obvious entertainment value to conservatives, the move didn’t sound like a particularly effective means of getting greater traction with the moderates and independents that have recently left the party in significant numbers, many of whom would likely find the move counterproductive.
 
Well, the resolution has been shot down at the RNC’s state chairmen’s meeting now underway in Maryland by none other than the national chairman, Michael Steele. Instead of Democrat Socialist Party red meat, party insiders will have to settle for their meat medium-rare with a resolution condemning the Democratic Party’s “march to socialism.” As I noted in my original post, this particular critique is nothing new in conservative circles. So, a resolution to this end would underscore the criticism, without recourse to any embarrassing name-calling by political professionals. And, Michael Steele continues his fascinating relationship with political elites in his own party.
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Don't Blink or You'll Miss It
05-19-2009
It is probably unnecessary for me to pile on House Speaker Nancy Pelosi at this point, as Congressional Republicans and assorted conservative elites have already been doing so for almost a week now, in the wake of her disastrous press conference on the infamous contested CIA waterboarding briefing. At least she received a few kind words from President Obama earlier today.
 
I will say that for me the issue is not whether Speaker Pelosi was fully briefed and is now lying, was sort of briefed, was misled, or is just faulty in her recollection of what information was provided to her by the CIA seven years ago. The reality is that at the time many Congressional Democrats acquiesced to the Bush Administration’s prosecution of the wars in Iraq and Afghanistan for fear of being branded unpatriotic, and the rest were just as willing to bring every possible resource to bear on the conflicts as the Republicans.
 
So, I’m just not convinced she would have taken a strong stance against the interrogation practice, even with full information. In retrospect, Pelosi and other Democrats may feel embarrassed by that now, but I don’t think it would have made any difference at the time. As a result, this whole discussion about what Pelosi was or was not told seems moot to me, given the tenor of our national politics in 2002-03.
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Steele Trap
05-18-2009
If you watched Meet the Press this weekend, you probably caught the remarkable exchange between moderator David Gregory and Republican National Committee Chairman Michael Steele on the issue of torture and enhanced interrogation.  Gregory asked Steele directly whether interrogators under the Bush Administration engaged in torture. Given how this question has dominated political discourse in Washington recently, you would think Steele would be prepared with a response.  But he was all over the map on this one. Here is the transcript of the exchange:
 
MR. GREGORY: Do you believe interrogators under the Bush administration's watch engaged in torture?
MR. STEELE: I think what, what was engaged in at that time was what the, the intelligence community, what the administration, the Department of Defense, the secretary of state all agreed were forms of getting information that were at that time...
MR. GREGORY: Right.
MR. STEELE: ...you know, deemed appropriate. Now, if since that time if there's, if there's another opinion that's been formed by this administration or others, then that's the direction of the course.
MR. GREGORY: Do you, do you think it was torture?
MR. STEELE: Well, my, my opinion on it doesn't matter. My personal opinion is look, I want the information.
MR. GREGORY: Yeah.
MR. STEELE: We'll get it however we can get it.
MR. GREGORY: But you do, you have an opinion?
MR. STEELE: I have a personal opinion, yes.
MR. GREGORY: Do you think it was torture?
MR. STEELE: That's my--I'm not, that's not appropriate here.
MR. GREGORY: You're not going to say.
MR. STEELE: Yeah.
 
Steele goes from suggesting an evolving legal definition of torture, to saying it's all about getting the information any way possible, to refusing to share his personal opinion on the subject. I understand why national party chairs don’t endorse specific candidates in primaries, but I didn’t know they can’t share their opinion on matters of policy, something Steele seems to be suggesting here. Perhaps he just didn’t want to create any more internal party strife for himself. Watching the video gives you an even better sense of just how uncomfortable Steele was in answering the question.
 
I will say that Steele was much stronger on the issue of the Supreme Court vacancy. Unfortunately, I can’t say the same for Democratic National Committee Chairman and Virginia Governor Tim Kaine (of eyebrow fame). On the same show, just one chair over, Kaine continued at length with the Obama Administration's theme of judicial empathy, which I’m still not sure I completely grasp, but which at a minimum sounds (as Kaine lays it out) like a recipe for an even more politicized judiciary. You can read the transcript and decide for yourself whether the concept has any clarity as a judicial criterion.
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Spring Garden Mix
05-15-2009
It has been one heck of a week in New Hampshire politics, with daily breaking developments on everything from gay marriage, medical marijuana, and expanded gambling to Mitt Romney’s real estate transactions and Manchester Mayor Frank Guinta’s run for Congress.
 
You can catch me as a guest on WMUR-TV’s Close Up this weekend, discussing as many of these topics as we can cram into a half-hour show. The program airs Sunday at 10 a.m., on channel 9.
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The Answer is "D" None of the Above
05-14-2009
With intense local and national interest in New Hampshire’s gay marriage debate, and genuine suspense over how Gov. Lynch would respond to the relevant legislation, I have spent the past week telling lots of folks in the media and elsewhere that the governor has three options with the pending legislation. He could sign it, veto it, or allow it to become law without his signature.
 
Well, it turns out I didn’t quite cover all of the bases on this one. As a journalist commented to me this afternoon shortly after Lynch asked the legislature for revisions, who knew there was a fourth option? I actually should have seen this coming. In recent days, Gov. Lynch has reacted to the intense lobbying campaign from both the left and right only by saying he would study the legislation carefully for any potential unintended consequences that might reflect negatively on the final law.
 
In a way, this is in keeping with Lynch’s style of executive decision-making. As I have noted before, he really can’t split the difference on gay marriage; he can either allow it in the state, or not. But it nonetheless seems like he has approached his task by considering the legislation’s impact on the state’s competing constituencies and interests, rather than by recourse to a fixed ideological position (as is often the case with lawmakers on this issue). So, I should have foreseen that Lynch would want to “tweak” the bill’s language, in order to ensure a better fit between the various constituent interests. That is very much in keeping with his approach to consensus-building, even in a situation where there are limits to how much consensus can actually be built.
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Sticks and Stones
05-13-2009
When I first read Roger Simon’s report today that the Republican National Committee is about to promulgate a new policy of referring to the Democratic Party as the Democrat Socialist Party, I did a genuine double take at my computer screen. You would think with all of the challenges currently facing the party, this particular item might not be at the top of the agenda.  If true, it will no doubt provide some pleasure to conservatives, but will probably not accomplish much more in terms of rebranding Democrats against their will.
 
My recollection is that the Republican ticket hit this socialism theme pretty hard during the last presidential campaign to little effect. Plus, if you spend any time following the partisan opposition to President Obama, you already know that references to his administration as a socialist phenomenon are ubiquitous among the Republican base, which makes the RNC seem like it’s a little bit late to the game with this proposal. If nothing else, it will be amusing to see how Republican elites work the new phrase into their talking points, at a time when they are increasingly consumed by internal conflict over their own rebranding efforts.
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Yuk Yuk Huck
05-12-2009
I have already written a bit about the less than warm reception some conservatives have given the National Council for a New America, the Republican policy development brainchild of House Minority Whip Eric Cantor. I noted in a previous post that the group may end up spending as much time fending off attacks from the right wing of the party as it does engaging the moderates and independents it hopes to draw back into its ranks.
 
In keeping with the intra-party warfare theme, former Arkansas Governor and ongoing presidential candidate Mike Huckabee has now decided to pile on with his own criticism of the initiative, noting his personal difficulty in holding back laughter at the new group’s “listening tour.” Huckabee’s post-election gig on Fox News has provided him with a rather nice platform for regularly interjecting himself into the conservative discourse in this way.
 
I mention this mainly to suggest that for all the attempts by Congressional Republicans to develop a policy agenda to counter the Obama legislative juggernaut, the party’s next presidential primary contest will most certainly revert to the time-honored tradition of having candidates claim outsider status, while playing to the base by running against the party’s so-called institutional elites. For me, Huckabee’s critique is a timely reminder of what that familiar attack will sound like, when we hear it again in 2012.
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Confirmation Conflagration
05-11-2009
Here is an item that caught my attention this morning. MSNBC’s First Read is reporting that the Obama Administration is now working from a shortlist of six candidates to fill the Supreme Court vacancy created by Justice David Souter’s recently announced retirement from the bench. What is surprising to me is First Read’s suggestion that we keep our collective eye on Homeland Security Secretary Janet Napolitano as an Obama favorite and potential frontrunner for the nomination.
 
While I am not an expert on judicial philosophy, I can say that in terms of confirmation strategy, there isn’t anyone on that shortlist whose selection would do more to polarize and politicize the process than Napolitano. This is not intended as a statement about her qualifications for the job, but simply a reflection of how quickly her relationship with Congressional Republicans has soured in the brief time she has held the DHS cabinet post. Whether it’s the furor created by the veterans-as-right-wing-extremists memo, or lingering doubts about her commitment to tightening border security, conservatives currently have Napolitano in the proverbial crosshairs.
 
I understand President Obama’s desire to look beyond the bench and academia for an outside-the-box nominee, but his team must know that anyone coming from the political world will likely ratchet up the bitter partisan warfare even beyond what we’ve come to expect for a typical nominee. Obama may nonetheless determine that such a choice is worth the pitched confirmation battle. And, if as First Read speculates, it’s Napolitano, then we could be in for a doozy.
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Won't You Be My Neighbor?
05-08-2009
You may have caught the spate of news coverage detailing Mitt Romney’s recent residential reshuffling. Romney is selling his residences in Massachusetts and Utah, while keeping his Lake Winnipesaukee retreat in Wolfeboro, New Hampshire and a newly purchased home just outside of San Diego in La Jolla, California. Not surprisingly, all of this real estate activity has political observers wondering whether Romney is planning to declare New Hampshire residency, thereby setting himself up for a favorite son run at the Republican presidential nomination in 2012.
 
I don’t want to overstate the strategic benefit of Romney moving from Massachusetts to New Hampshire, but it is true the switch could provide him with some new opportunities to nurture grassroots support and quietly lay the organizational groundwork for the state’s leadoff primary in 2012, should he desire to do so. We could even see him become more actively involved in campaigning for local Republican candidates in the 2010 midterm elections; of note, Romney recently registered his Free and Strong America PAC here.
 
That said I’m not sure how much added political value Romney really gets from spending more time at the lake. It feels like he already played the favorite son card up here during the last presidential primary cycle. I recall that Romney was in-state constantly during 2007 and 2008, and pictures of the Romney family at the Wolfeboro retreat were a staple in the media. By comparison, just having John McCain finally out of the way in the Granite State may do more to improve Romney’s chances of winning the New Hampshire Primary than no longer needing to drive up from Massachusetts. On the other hand, if Romney is simply adopting the snowbird lifestyle like many people in their 60s do, then Wolfeboro and La Jolla are a pretty sweet way to go (while you ponder your political future).
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Waiting for Governor Lynch
05-07-2009
When Democrats took control of the state legislature after the 2006 midterm election, I heard some Republican political elites argue that Governor Lynch’s natural inclination toward moderation would not be sufficient to prevent the new majority from shifting state policy dramatically to the left. Well, we’re about to get a pretty good test of that hypothesis, as Lynch decides what to do with the gay marriage legislation soon to be sitting on his desk.
 
While not showing his hand in brief comments yesterday, Governor Lynch seemed to draw an implicit distinction between his personal beliefs on gay marriage and his responsibility to the people of New Hampshire. As the governor of New York in the 1980s, Mario Cuomo famously took a similar position on abortion. Cuomo claimed that his Catholicism prevented him from personally supporting abortion, yet he was a solidly pro-choice governor.
 
Lynch’s similar private/public bifurcation on the issue has given New Hampshire progressives some hope that, at a minimum, he will let the bill become law after five days without his signature. They look to underlying shifts in the state’s demographics, recent public opinion data showing majority support for gay marriage, and the adoption of similar legislation in surrounding states as incentives for Lynch to now recalibrate his public position, even as he voices personal misgivings.
 
As I have noted many times before, Governor Lynch is not an ideologue. He is by nature a task-driven chief executive who prefers to build bipartisan support for his policy decisions. But it’s pretty difficult to split the difference on gay marriage. He either has to allow it in the state, or not. My sense is that Lynch has sufficient political capital to withstand the blowback he will inevitably receive from whichever side of the debate he disappoints. A record fourth term will likely still be his for the taking, but that won’t make the current decision any easier.
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Recalibrating the Specter Detector
05-06-2009
In a post last week, I noted that the two wildcards in Senator Arlen Specter’s recent switch to the Democratic Party were his likely expectation that his 29 years of legislative seniority would be laterally transferable to the Democratic Caucus, and the potential that his quirky brand of political egocentrism could prove to be an unwelcome handful for the Obama Administration. By those wildcard criteria, Specter’s first week as a Senate Democrat was a pretty wild one indeed. In fact, Specter’s unpredictable behavior over the past week was sufficiently annoying to his new caucus colleagues for them to strip him of any seniority, at least until after the 2010 midterm election.
 
For all his recent bluster, Specter seems to realize that he actually has very little political leverage here. Too much mavericky behavior on his part and he will find himself facing a serious Democratic primary challenge next year, notwithstanding any promises by President Obama and Pennsylvania Governor Ed Rendell to the contrary. My guess is that both Specter and the Senate Democratic leadership will move to quiet the situation a bit, before the accompanying media circus threatens to do real damage to both Obama’s legislative strategy and Specter’s reelection prospects.
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No Jacket Required
05-05-2009
I knew the Republicans were getting down to business with their new rebranding effort, when I saw a clip of Jeb Bush, Mitt Romney and Eric Cantor sitting on stools in a suburban Virginia pizzeria, sans tie and in shirt sleeves. The sleeves weren’t rolled up to the elbows, as if to “scrub in” Howard Dean-style, but it was clear nonetheless that this gathering was intended to convey a different message.
 
Billed as a “policy-based conversation with America,” the National Council for a New America touts itself as “a caucus of Congressional leaders gathering the expertise of national leaders and doers.” The national leaders and doers are apparently people like Mitt Romney, Bobby Jindal, Jeb Bush, and newly-minted member, Sarah Palin. One notable absence from the panel of experts is Newt Gingrich.
 
The idea is an attempt by Congressional Republicans to transcend their current reputation as the party of “no,” by developing a policy agenda that springs organically from town hall meetings around the country. The initiative also looks to broaden interest in the party by seeking policy common ground with moderates and independents on issues like the economy, health care, and education. Glaringly absent from the organization’s policy statement (and the weekend pizza party) is any mention of the divisive social issues so dear to the party’s right wing.
 
Many political observers (me included) have challenged Republicans to go beyond their constant criticism of President Obama and come up with some sort of alternative policy agenda that can be competitively assessed against the Obama Administration’s ideas. In that respect, I suppose the NCNA is a reasonable attempt by Republican political elites to get something forward-looking going.
 
But spend a few minutes sampling the derision leveled at it by conservative talk radio, and you will get a pretty good sense of the potential difficulty the council will encounter with the party’s conservative base. My guess is the council will spend as much time defending its right flank as it does reaching a new policy consensus with the center, but it seems like some Republican political elites are now willing to engage that battle.
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The Phrase that Pays
05-04-2009
Every so often, certain words and phrases become so overused in our public discourse that they lose any substantive meaning and are largely reduced to the status of political clichés. During last fall’s general election campaign, I wrote a newspaper column in which I called for several of these clichés to be banished from the political discourse. I really wasn’t getting my hopes up that anything would change, but it sure felt good to draw attention to these annoying, rhetorically lazy turns of political phrase.
 
Now, with the announcement of Supreme Court Justice David Souter’s retirement, we can prepare ourselves for the return to the political discourse of yet another time-honored (and incredibly irritating) political cliché. If the weekend’s Sunday chat shows are any indication, we will spend the next six months hearing political elites expound endlessly on the dangers of…activist judges.
 
In recent years, you might have heard the phrase used by conservatives to excoriate state or federal judges whose rulings were seen as reinforcing liberal positions on social issues like gay marriage and stem cell research. But Democrats have wisely neutralized the ideological import of the phrase by talking just as frequently about conservative activist judges whose rulings deny American citizens the basic legal rights guaranteed to them by the Constitution on issues like privacy and choice.
 
So, we are now at a point where the ubiquitous phrase (often used in combination with another classic, legislating from the bench), means little more than a judge whose legal world view is aligned with the policy agenda of the opposition party. If the appointment of a particular judge tips the balance of the court away from your party’s political interests, well then he or she is of course an activist judge. As such, this concept is not a particularly useful means of better understanding a nominee’s judicial philosophy, but has instead been captured by the knee-jerk partisanship that will inevitably surround the next Supreme Court nominee.
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