As if this election needed even more controversy and intrigue, the death of Antonin Scalia cranks up the intensity even further. Objectively, his demise does not really increase the stakes in the election. Given the ages of the Supreme Court justices, it was probable that one or more of them would die or retire during the next presidential term. His death serves only to bring the issue into immediate focus.

Interestingly, Republican Senate Majority Leader Mitch McConnell announced he would block any attempt by President Obama to nominate a successor even before a cause of death was announced for Associate Justice Scalia. This is a clear signal that conservatives see the Supreme Court as their last bulwark against the tide of history.

To be blunt, demographics are not on their side. Conservative Republican voters skew older and whiter. They are rapidly being replaced by younger, more ethnically diverse voters whose views differ from conservative positions on religion, abortion, homosexuality, etc. Packing the Supreme Court with hard liners probably seems like the last ditch hope to keep the country embedded in the culture of the 1890s.

We will doubtless be deluged with encomia to Scalia. They will tell us how we need judges who judge and not judges who legislate. This will neatly elide around the fact that what they admire the most about justices like Scalia is the way they declare laws passed by legislatures to be unconstitutional; for example, gun control laws in D.C. and in Chicago or various affirmative action statutes.

The phrase “legislating from the bench” is simply conservatives’ term of rejection for a decision with which they disagree. They insist that all of the answers to constitutional issues are stated in plain language in the constitution and that no interpretation is necessary.

Unlike other constitutions, ours is intentionally broad and vague. Thus it is generally fruitless to pore over its articles in search of clearly articulated answers to knotty legal issues. Additionally, although it is possible to amend our constitution, the process is intentionally slow and difficult.

So when conservative justices claim to be simply following the rules and compare their decision making to a baseball umpire ruling a batted ball fair or foul or a base runner safe or out I wonder whether they actually believe what they are saying  or if they think this is merely sounds like a plausible story.

A more fitting sports metaphor might be a football official ruling on pass interference. This infraction has a squishy malleable definition. Like pornography, while everyone agrees that pass interference exists and everyone claims to know it when they see it, both pass interference and pornography elude being cleanly definable in a way everyone can agree upon.

There is little evidence that any Supreme Court justice, past or present, has ever had anything remotely resembling an objective standard for deciding difficult cases. Fortunately, the vast preponderance of cases before the Supreme Court are unexciting (except to the litigants) issues in contract law. In the more emotionally-charged cases one searches in vain for consistent lines of reasoning.

It might be useful to consider how of juries are used in the British and American legal systems as opposed to decisions being rendered by either individual judges or panels of judges in other legal traditions. Why do we use juries of amateurs?

When I have described our system to people from other legal systems they are horrified that untrained amateurs, almost chosen at random, are allowed to make life and death decisions.

One plausible explanation is that since we can never know with absolute certainty the right decision in a trial, a one-time jury of civilians disbanded after the trial can never be held accountable for more than one decision.

I am not advocating empaneling civilians to judge Supreme Court cases. I bring this up to call attention to how, in one aspect of our legal system, we expect infallible decisions; while in another aspect we despair of certainty and let amateurs decide.

Well, the Iowa caucuses are tomorrow and general confusion dominates the 2016 presidential election. Donald Trump, who appeared to be little more than a novelty act in the fall, has endured as genuine threat to win both in Iowa and next week in New Hampshire. Again and again the supposed wise men and women of political punditry declared that he had finally gone too far and that his poll numbers would plummet.

On the other side, Bernie Sanders in the fall was seen as a rent-a-date escort so Hillary Clinton would not have to debate herself. The polls now show them statistically tied going into tomorrow. Polling wizards claim Sanders’ support is iffy beyond the first two contests. We shall see.

As it gradually became apparent that Trump was not going to flame out Republicans assumed a so-called mainstream candidate would emerge from the pack to provide an alternative to Trump. As it happens, three of the top four in Republican polling are outsiders (Trump, Cruz, and Carson) and the only insider, Rubio, is a distant third. The designated mainstream torchbearer, John Ellis Bush, is so near political death that he can barely fog a mirror.

Trump says he will make America great again. This, of course, begs the question as to whether America ever was great in the first place. This word is so non-specific and squishy in meaning as to defy definition in the context in which Trump uses it. When pressed, Republicans will typically cite the immediate aftermath of WWII as the epicenter of American greatness. Is this claim sustainable?

All of the countries that at present challenge American “greatness” were devastated by the combined impacts of the two world wars. These countries include, but are not limited to: Russia, Germany, China, Japan, and Korea. These countries lost significant fractions of their populations (20 million+ in Russia) and had their manufacturing and agricultural sectors ruined. It is no wonder that we towered over these countries economically and influentially.

While we did take steps to abet their recoveries, it was not entirely altruistic, as we needed their economic resurgence if they were to purchase our agricultural and manufactured goods. Despite the enormous head start we had over these countries in 1945, it only took a few decades for American firms to begin losing significant market share to foreign competitors.

According to Republican mythos manufacturing jobs were “stolen” by foreign competitors. This raises the image of cat burglars sneaking into American factories by night and off loading American jobs into railcars that were spirited out of the country. The jobs were “stolen” by Japan and Korea only in the sense that jobs in American Rust Belt states were “stolen” by companies in the American Sun Belt.

Americans have always been free to vote with their wallets and insist upon only buying higher priced, lower quality goods produced domestically. Sure that’s hard to do now, but would not have been hard to do 50 years ago when there was still significant US manufacturing.

So, to return to the greatness theme, how great were we if we could be aced out of our entire manufacturing sector in less than 60 years? And to ask a better question, how could we ever get these manufacturing jobs back? The jobs were lost in the first place because foreign workers accepted lower pay and their companies accepted lower profits. So all we need to do is convince factory workers to accept large pay cuts and stockholders to accept much lower corporate profits. Dream on.

Last week on one of the political chat shows someone asked why iPhones are not made in the US. I do not know what the pay is in Chinese factories, but I am sure at any wage an American would regard as acceptable an iPhone would cost as much as a small car. At that price, they would not exist.

Trump supporters want to believe that a sufficiently tough, wily, and shrewd deal maker could see to it that high paying manufacturing jobs could again become plentiful in the United States without seeing prices of manufactured goods becoming unaffordable.

Trump supporters are doomed to disappointment. Either he is not elected and they will go on pining for Mr. Right. Or, he will win and they will see him fail.

In the previous installment of this series I remarked upon the outsized importance two small states, Iowa and New Hampshire, have on the presidential nomination process, This time I will expand upon this idea and show how the leverage small states have in presidential elections is embedded in the U.S. Constitution.

It comes as a surprise to most people to learn that there is no provision in the Constitution for a presidential election. Well, there is an election called for, but participation is restricted to members of the Electoral College. Sure, you say, but this is just a formality. The “real” election takes place in November when millions of individual citizens vote.

Let’s temporarily set aside an assessment of the reality of the November ballot and return to the text of the Constitution. Article II, Section 1 states, “Each state shall appoint, in such manner as the Legislature may direct, a number of electors.” Clearly the operative phrase is; in such manner as the Legislature may direct.

That is not merely a rhetorical flourish. In early Presidential elections most states chose electors either by direct appointment by the state’s governor or by a vote of the state legislature. No amount of casuistic sophistry can dispel the plain inference that the framers of the constitution did not trust individual voters to cast ballots for the presidency.

It is also true that the framers never envisioned the existence of political parties (called factions in the terminology of the day) nor did thy foresee the ensuing contested elections that later became the norm. They thought they were setting up a system where a certain number of prominent citizens would be appointed as Electors. On a designated day the Electors would get together and each Elector would write two names on a ballot. The ballots would be shipped off to the the House of Representatives who would open and count the ballots.

If one name on appeared on more than half the ballots, that person would be president and the second place name would be vice president. If no one got more than half the votes, the president would be selected by a vote in the House of Representatives, with one vote for each state. This is exactly what happened in the election of 1800 where Jefferson and Burr got the same number of votes in the Electoral College. It took many ballots and shady back-room deals before Jefferson was finally appointed president by the House.

When the constitution was written it was widely acknowledged that George Washington would be the first president. The question we should ponder is whether the framers actually thought that, subsequent to Washington, there would be a single person so obviously and pre-eminently suited to the job that more than half of the electors would spontaneously chose that person. Remember that they thought campaigning and electioneering to be abhorrent. So the question we are asking is whether we believe they thought that 20 or 30 years down the road more than half of a group of people brought together from all over the country would magically come up with the same name? Bear in mind they did not think the electors would discuss or deliberate among themselves. They would simply show up and vote for someone they had decided upon in advance.

I have no idea whether they thought this through in this manner. But it seems exceedingly unlikely that they could have imagined that there would always, or even ever, be another person like Washington who would self-evidently tower above all other possibilities. We are left with the supposition that they may have thought that, for the most part, future presidents would be selected by the House. Since each state casts one vote in such a presidential selection process, regardless of population, this would give small states an outsized influence over the process.

Consider this: the twenty-one states with the smallest populations added together are approximately the same population as California. In such a House ballot, the twenty-one smallest states would have 21 votes, California would have 1 vote. This means that Wyoming, with a population of 584,000, approximately the same as Fresno, California’s 5th largest city, would have the same number of presidential votes a the entire state of California. These twenty-one smallest states would comprise 81% (21/26) of the number of votes required to select a president. If this isn’t scary enough, the twenty-six smallest states–enough to choose a president in the House of Representatives–comprise 17.48% of the population of the country.

Well, you may say, as unsettling a prospect as it may be that states that account for approximately one-sixth of the overall population could select a president, is there any realistic scenario for an election actually being decided by a one-state-one-vote election in the House of Representatives? Actually, the only thing that stands between us and the House routinely choosing the president is the two-party system.

While governors and state legislatures no longer (at least for now) choose members of the Electoral College, it still remains that the Electors still do have a single opportunity to vote for president. There are 538 total Electors, so 270 votes are needed to choose a president. There is no second ballot. This becomes iffy in cases where there is a strong third-party candidate.

Consider 1968: Nixon got 401 electoral votes, Humphrey got 191, and George Wallace got 46. Nixon won California by 223,000 votes (about 3% of the total). Had 3% of the votes drifted to Humphrey and Wallace, Nixon would have lost California. This would have left Nixon with 261 electoral votes and the House would have selected the president in 1968.

In 2015 we have a very large number of seemingly viable candidates running. Even Clinton, who several months ago seemed to have a clear path to the Democratic nomination, no longer seems inevitable. Many people seem to believe that an election with three or four or more major candidates would be just the tonic the country needs to shake off the sclerotic hold of the two major parties. But, it should be clear that this would make it probable that the House would select the president in 2016. In view of the substantial preponderance of Republicans in the House, this is is an outcome Republicans would likely find satisfactory. After all, they had no qualms about the Supreme Court selecting the president in 2000.

I am not hypothesizing a vast right wing conspiracy. I do not think this was planned. But a couple of things are true. One: in a two-candidate election demographics do not favor the Republican party. Republican voters skew older, whiter, and Anglo. The country is becoming younger and more ethnically diverse. Two: an election wirth three or more strong candidates makes it improbable that any single candidate can achieve the necessary 270 electoral votes to win outright. This throws the election into the House where Republicans have a significant majority.

Indeed, if a person were to conclude (as is likely) that long-term demographic trends make it exceedingly unlikely the national Republican party will ever be able to elect another president until or unless they have a major overhaul of party platform, then it is strongly in the interest of Republicans to foster a climate where there are a sufficient number of candidates appearing on a November ballot such that no candidate can ever win outright by amassing 270 Electoral votes. This would permit the House of Representatives to invariably choose the president.

For a variety of reasons I do not have the space to explain here it has proven relatively easy for Republicans to Gerrymander state electoral districts such that they are able to achieve and maintain a seemingly insurmountable advantage in the House of Representatives despite the fact that millions more votes were cast for Democratic House candidates than were cast for Republican candidates.

The effort by Republican Party headquarters to secure loyalty pledges from their vast field of candidates seems primarily motivated by a desire of party bosses to remain powerful and influential.

The first reference I can recall to the Republican presidential aspirants as a clown car came in 2011. Someone thought the long stream of candidates filing out onto a debate stage reminded them of the classic circus stunt where a seemingly endless stream of clowns emerge from a miniature vehicle.

It didn’t take long for clown to take on a broader range of connotations as one candidate after another said or did something so inept or idiotic as to immediately scuttle their prospects.

Four years later the clown car act is back–this time with seventeen candidates. So many that the host of tomorrow’s first debate, FOX News, has decreed that only the top ten in national polls will be allowed to participate in the main debate with the remaining seven exiled to a happy-hour debate at 5:00 PM.

Even so, the time constraints of cramming ten debaters into a 90-minute format means that only the most felicitous zingers or catastrophic faux pas sound bites will be remembered the next day.

The obvious, yet strangely unasked, question is: what conceivable purpose is served by having seventeen candidates for the Republican presidential nomination? I suppose this number of applicants permits an observer to imagine that a wide and diverse range of viewpoints is being considered.

This would be an incorrect inference. The seventeen applicants, in fact, are remarkably uniform in their positions on every issue. This is what accounts for their unwieldy number. They are essentially interchangeable parts forged on an assembly line of conservative focus groups. Rather than representing seventeen diverse outlooks, we see seventeen people actively seeking to conform to what focus groups and campaign managers tell them is desired by a majority of the minuscule number of people who will actually vote in the early presidential primaries.

Robert Kennedy was assassinated on June 5, 1968. At that date the Democratic nomination was still a wide open contest. In fact, Kennedy did not announce his candidacy until March 16. Nothing like that could happen now.

Reinhold Priebus, chairman of the Republican National Committee has said they will have chosen a candidate well before the end of March. If this is so, either all primaries will have to be packed into the first weeks of 2016 or any laggards with later dates will be meaningless. Regardless of what other states do, Iowa and NewHampshire have already secured for themselves a guarantee that they will be first.

These are small states whose economies are significantly boosted by endless pilgrimages by candidates and reporters to places not otherwise known as tourist meccas. Small is, of course, the operative word here. They possess a total of ten electoral votes, a number that would be of consequence only in a white-knuckle, photo-finish general election.

Yet these are the voters whose whims and predilections are most avidly studied by the candidates and their staffs as they prepare for the debate. Which of the seventeen will be anointed the nominee is currently unknown. Yet we do know at least two things about that person: they will not have made a disqualifying blunder during the debates and they will have likely have won at least one of the early primaries. In fact, winning both Iowa and New Hampshire probably would come close to cinching the nomination–despite their representing 1.86% of the total electoral votes.

This strategy of carefully crafting a message to appeal to a statistically-abnormal subset of the nation’s population has proven problematic in general elections. In only one of the last six presidential elections has the Republican candidate’s vote exceeded 50%; and then (2004) only by seven-tenths of one percent.

9:40 AM August 5, 2015