"Mere factual innocence is no reason not to carry out a death sentence properly reached."

Justice Antonin Scalia, on capital punishment (not the actual words, but certainly his intention).

Rest in peace.  May your god have mercy on your soul.  I have none to give.

The ramifications for the Supreme Court's workload, the Supreme Court's future composition and without question the 2016 presidential contest are enormous, and just beginning to be calculated. Some are detailed in Laura Clawson's post here.  Republicans have already promised no new justice will be confirmed while Obama is president.  Think Progress:

The longest it has ever taken to confirm a Supreme Court nominee is 125 days. Obama has 361 days left in office.

And hey, this is as good a time as any to emphasize the importance of a Sanders presidency ...

Update: SCOTUSblog answers the questions about what happens with this term's cases.

The passing of Justice Scalia of course affects the cases now before the Court.  Votes that the Justice cast in cases that have not been publicly decided are void.  Of course, if Justice Scalia’s vote was not necessary to the outcome – for example, if he was in the dissent or if the majority included more than five Justices – then the case will still be decided, only by an eight-member Court. 

If Justice Scalia was part of a five-Justice majority in a case – for example, the Friedrichs case, in which the Court was expected to limit mandatory union contributions – the Court is now divided four to four.  In those cases, there is no majority for a decision and the lower court’s ruling stands, as if the Supreme Court had never heard the case.  Because it is very unlikely that a replacement will be appointed this Term, we should expect to see a number of such cases in which the lower court’s decision is “affirmed by an equally divided Court.” 

The most immediate and important implications involve that union case.  A conservative ruling in that case is now unlikely to issue.  Other significant cases in which the Court may now be equally divided include Evenwel v. Abbott (on the meaning of the “one person, one vote” guarantee), the cases challenging the accommodation for religious organizations under the Affordable Care Act’s contraceptive mandate, and the challenge to the Obama administration’s immigration policy. 

The Court is also of course hearing a significant abortion case, involving multiple restrictions adopted by Texas.  In my estimation, the Court was likely to strike those provisions down.  If so, the Court would still rule – deciding the case with eight Justices. Conversely, the Court was likely to limit affirmative action in public higher education in the Fisher case.  But because only three of the liberal Justices are participating (Justice Kagan is recused), conservatives would retain a narrow majority. 

There is also recent precedent for the Court to attempt to avoid issuing a number of equally divided rulings.  In Chief Justice Roberts’s first Term, the Court in similar circumstances decided a number of significant cases by instead issuing relatively unimportant, often procedural decisions.  It is unclear if the Justices will take the same approach in any of this Term’s major, closely divided cases.

Update: Brad Friedman with the definitive piece.

A turning point

... for the Democratic Party's presidential nomination seemed to have occurred in the wake of last Thursday night's debate.

All day long I was antsy about it, and when debate night finally arrived, it was -- as they have all been -- substantive, snappy, a little snarly, certainly contentious, and finally a bit agreeable.  It was important for Bernie Sanders to do well in the debate (but that alone isn't good enough); overall I really thought it was going to be the pivotal moment in the primary contest, and it looks as if I was more correct than even I thought.

I promise at the end of my first term we won't have more people in jail than in any other country.

— Bernie Sanders (@BernieSanders) December 11, 2015

Uh oh.

As Mark Kleiman, Leon Neyfakh, John Pfaff, Chris Hayes, Tim Murphy and German Lopez all noted, this is not simply a very ambitious goal. It is absurd, outlandish, ridiculous, disconnected — you name it. And not for the usual reasons that people say such things about Sanders’ promises, either. Not because it’s hard to imagine, but because it is impossible, full stop.

Read Kleiman in particular, or if you only have time to read one.  Update: More on Kleiman's POV from Socratic Gadfly.

Unlike his promises regarding health insurance and secondary education, then, Sanders’ promise concerning mass incarceration doesn’t irk because it refuses to grapple with “political reality.” It irks because it refuses to grapple with reality, period. 

As much as the idea of a “political revolution” may strain credulity, you could at least imagine how a mass movement might usher in a new Great Society. A liberal Congress is swept into office, one itching to make good on the promises of the new democratic socialist president. It’s extremely unlikely, granted, but at least you can conceive of it. With all due respect to the power of popular democracy, though, there is no movement — no matter how massive — that can defeat the stubborn insistence of basic facts. 

So is Sanders’ campaign doomed, now that he’s revealed himself to be either disingenuous or ignorant when it comes to mass incarceration? No, not remotely; Clinton, too, has made promises it is incredibly hard to imagine her being able to keep. What the strong pushback his proposal’s received from many sympathetic pundits does suggest, though, is that their patience for his idealism is not unlimited. 

And if the press decides that it no longer sees Sanders as America’s cranky but lovable socialist grandpa, and that it no longer sees his promises as ambitious rather than demagogic, then it could turn on his remarkable presidential campaign — hard and fast.

Hillary's also 'found her voice', according to her very large support network in the media.  So no matter the DNC stacking the deck against him in terms of both superdelegates (Nate Silver gives a glimmer of hope here) and lobbyists and super PACs, no matter Hillary's own truly wretched and severe shortcomings, the potential for Sanders being undone by his own hand is now very real.

The Clinton Machine is grinding hard in South Carolina.  It may be hitting a wall in Nevada (Crooks and Liars, in Susie Madrak tradition, throws cold water on that poll showing them tied) but the Hillaryians have an ace card up their sleeve there.  And then comes the SEC primary on March 1.

Clinton is eyeing the large group of southern states that vote that day, including Alabama, Arkansas, Georgia, and Tennessee. BIll Clinton is heading to Memphis Thursday and will travel to Atlanta again soon. These states, along with South Carolina, are part of her much-discussed Southern Firewall. But Clinton will need to frontload delegates at the beginning of the month, because there are only two southern states – Louisiana and Mississippi – left after March 1. 

Meanwhile, Sanders is eyeing whiter and more liberal Super Tuesday states, like Minnesota, Colorado, Massachusetts, and his home state of Vermont. Both candidates will appear in coming days in Minnesota and Colorado, two states where Sanders is strong. Clinton dominated Barack Obama by 15 points in Massachusetts in 2008, and this year she has widespread support among elected officials. 

With a whopping 222 delegates, Texas will also be major battleground, with an outright win being perhaps less important than claiming as large a chunk of delegates as possible. Clinton recently picked up the endorsement of the largest Latino group in the state and has deployed surrogates like the Sec. Julian and Rep. Joaquin Castro to campaign on her behalf. 

Sanders this week reserved TV advertising in Minnesota, Colorado, Massachusetts, and – surprisingly for one of the reddest states in the country – Oklahoma. Both campaigns seem to be targeting Oklahoma and its 38 delegates. Sanders sent his scrappy Iowa organizer Pete D’ALessandro to the state, while Clinton’s campaign set their Iowa press secretary.

Clinton's lined up almost every elected official in Texas, and some formers, including Wendy Davis, who's been onboard for the past six months.  Davis needs a job that provides a path back into electoral politics, after all, and a stint in a Clinton 2.0 administration is just the ticket.  Fresh polling from the TexTrib's YouGov is in the field (I have been polled), and that is likely to show Clinton still in control here in Deep-In-The-Hearta.

Sanders isn't in big trouble yet but he's swimming against the tide, and I don't think he's strong enough to overcome it.  We'll keep watching and waiting, but it sounds like the bell has tolled.

Grand Old Psychopaths take another debate turn

The next Republican presidential debate will be tonight at 9 pm Eastern. It will take place in Greenville, South Carolina, and will air on CBS. An online live stream will be available at CBSNews.com. 

Now that Iowa and New Hampshire have voted, the GOP field has gotten a lot smaller. Only six candidates will be onstage tonight: Donald Trump, Ted Cruz, Marco Rubio, Jeb Bush, John Kasich, and Ben Carson. 

This will be the final GOP debate before the party's South Carolina primary on February 20 and its Nevada caucuses on February 23. Then there will be one more Republican debate before the March 1 "SEC primary," in which many Southern states and a few non-Southern ones will go to the polls.

That one will be in Houston, as we learned (again) earlier this week.  I'm going to apply for a media credential and see what happens.

The nomination contest has entered a dangerous phase for the Republican establishment. Ted Cruz and Donald Trump — two candidates loathed by party elites — have won the two contests so far, and by most accounts are the two top contenders in South Carolina as well. Even many who have long been skeptical of Trump's chances are starting to admit that he could really win this thing. 

But a bizarre dynamic to the race has persisted, in which all of the non-Trump candidates are still more focused on attacking each other than they are on attacking Trump. From each candidate's perspective, it makes sense — they're all hoping to end up the last non-Trump candidate standing, and to eventually take on the billionaire head to head. But as long as they all remain in the race and fighting each other, Trump seems more likely to cruise to victory.

My emphasis.  It's Trump versus Clinton in November; you heard it here first.

The non-Trump vote is so divided because Marco Rubio, the emerging establishment Republican favorite, stumbled in New Hampshire, finishing in fifth place behind Trump, John Kasich, Ted Cruz, and Jeb Bush. As a result, Kasich and Bush decided to stay in the race, which could ensure that the more mainstream GOP vote will remain divided for some time. 

One of the big questions of this debate is whether Rubio can recover from his panned performance last time around. If he manages to come off as unscripted — say, if he wins some tense one-on-one exchanges with other candidates — he could be deemed the debate's winner and regain some of the ground he's lost both in the polls and in elite opinion.

I believe all he is doing now is auditioning for vice president.  He's the obvious choice for Trump; Latino, from a swing state, needs more political seasoning, and also in need of a job once he's out of the running.

Still, the marquee contest has to be Trump versus Cruz — both are battling to win South Carolina. Things have gotten increasingly tense between them lately. Cruz is running a new ad attacking Trump over his attempt in the 1990s to use eminent domain to take an elderly widow's home so he could build a limousine parking lot. And Trump has been striking back against Cruz on Twitter, asking on Friday, "How can Ted Cruz be an Evangelical Christian when he lies so much and is so dishonest?" We'll see how their rivalry plays out during the debate.

Trump's also thinking of filing a birther lawsuit against Cruz if Ted doesn't stop running attack ads against him.  Oh what fun.

I am of the opinion that establishment Republicans, given the choice ultimately comes down to either Trump or Cruz, go with the billionaire because: a) they don't want him on the outside of the tent pissing in, b) the GOP "superdelegates" -- I refer here to the party's insiders and elected officials, not the same as the Democrats', to be clear about the contrast between the parties -- dislike Cruz more than they dislike Trump, and finally c) even at this late date, Trump could mount some insurgent third-party bid with his money and enthused supporters.  Even the smallest effort in that regard threatens a Republican Party nominee who has no votes to lose electorally.

It's still Clinton-Castro 2016 IMO, especially after last Thursday night, about which I'll have more to say in just a moment.

Henry Kissinger is nobody's friend

-- Socratic Gadfly scores last night's debate.  He speaks for me (and saves me a lot of time and effort), but I'll go ahead and post what I saw anyway.

-- You'll never guess where Hillary last wore that yellow cape.

She just doesn't get it.  Since you can't really believe what she says, you have to rely solely on her actions.  And those betray her words over and over and over.

Let's be clear: all those Tweets about Big Bird and bananas and Colonel Mustard's wife and Kim Jong Ill (as in vomit) are, in fact, sexist.  Pointing out that she wore the same thing twice in two public appearances might even be sexist.  Bernie Sanders looks like he slept in his car last night.  Is that sexist?  What is it called if women Tweet that his finger-wagging is "old man" behavior?

Meh.  Juvenile is what I'll call it.  Let's move on.

-- Here's the exchange on money in politics.  It's worth reading entirely.  And the back-and-forth on foreign policy likewise.  Your takeaway:

"I don’t know who you get your foreign policy advice from,” Clinton quipped. 

“Well, it ain’t Henry Kissinger,” Sanders replied.

-- Any additional questions about American foreign policy past, present, and future should be answered here, but Juan Cole is there for you with something more even-handed.

-- While Sanders and Clinton seemed to battle to a draw on interventionism and hegemony, Bernie really got the best of the debate on immigration.  Long excerpt:

In the final debate before Hillary Clinton and Bernie Sanders face off in states that feature the most diverse voting electorates yet seen on the campaign trail, the candidates went on the attack to cast doubt on their opponent’s dedication to the pro-immigrant cause. 

Clinton was cornered Thursday night into defending past calls to deport waves of Central American children, an issue that was hotly contested at the time but is now deeply unsettling for immigrant communities as fresh rounds of deportation raids sweep the country. 

The former secretary of state had taken a hard line against the thousands of unaccompanied minors that flooded the southwest border in 2014. And though Clinton has since dramatically softened her tone on how the U.S. should address the aftermath of the humanitarian crisis at the border, she was put on the defensive to explain why she supported deportation then, but opposes the raids now. 

[...] 

But the Obama administration shocked pro-immigrant organizations last month when it began carrying out deportation raids to sweep up families and deport them back to Central America. The raids have stoked fears from the immigrant community and resentment from congressional Democrats who vocally opposed the administration’s position. 

“I am against the raids. I’m against the kind of inhumane treatment that is now being visited upon families, waking them up in the middle of the night, rounding them up,” Clinton said. 

Sanders was forced to face his own vulnerabilities on immigration, namely his opposition to a 2007 bill to pass comprehensive immigration reform, a lingering problem that most Latinos agree needs to be solved. 

“I voted against it because the Southern Poverty Law Center among other groups said that the guest worker programs that were embedded in this agreement were akin to slavery,” Sanders said. “Akin to slavery. Where people came into this country to do guest work, were abused, were exploited. And if they stood up for their rights, they would be thrown out of this country.”

More from Politico, here (the conservative POV reflected here is: "horrified") and here (more blow-by-blow, underscoring the differences).  Sanders is moving farther and faster than just debating the issue.

-- Vox has five key moments, Think Progress laments there were no climate change questions, and Fusion slammed both Sanders and Clinton for not saying the word 'abortion'.  If you want to read the full transcript, here you go.

Sanders versus Clinton tonight once more, and the superdelegates

Tonight's debate, moderated by PBS NewsHour anchors Gwen Ifill and Judy Woodruff, will be simulcast on CNN and NPR and stream live on NPR.org.  [...] 

Bernie Sanders and Hillary Clinton meet Thursday night on a debate stage in Milwaukee. It will be their first face-to-face matchup since Tuesday's New Hampshire primary where Sanders beat Clinton by more than 20 points. 

[...] 

PBS is a non-commercial network that doesn't live and die by ratings quite the way CNN or NBC does. The NewsHour, anchored by Gwen Ifill and Judy Woodruff, is known for lengthy, thoughtful interviews and stories that dig deep. It seems quite likely that sensibility will change the types of questions that are asked. This could be good news for Democratic voters who haven't yet seen the candidates get beyond sound bite answers in debates on issues like criminal justice reform and immigration.

Lots of Clinton folks mocking out the Sanders people about their superdelegate quandary.  When I need the highest douchebaggery, I know that Ted will always be there.

"Not a Democrat".  (False.) "Party's rules don't change." (False.)  And so on like that.  It's all over my social media in the wake of their candidate's tie in Iowa and her crushing defeat in New Hampshire (in which she will still take away the most delegates).  There is no hint of irony in all of this, but a lot of sneering condescension.

Sanders has so far carried, by large majorities, young people -- who don't typically turn out -- and independents, whom a candidate must have in order to win a general election.  These voters have not been attracted to the Democratic Party in the past, and won't be in the future, particularly if these insults against them continue.  And the highest insult is going to be the conduct of the superdelegates.

Superdelegates only came into existence following the defeats of George McGovern in '72 and Jimmy Carter in '80, and not implemented until '84... and the blowout loss of Walter Mondale.  So it would seem that the elite Democrats do no better at selecting the nominee than they perceive the plebians to be.

By 1982, however, the sentiment was essentially that the cure (1972, "validated" by 1980) was worse than the disease (1968).

Since at least that time (I would assert the problem goes back to the selection of Harry Truman over Henry Wallace for vice-president in 1944), Democrats have cowered in fear at the thought of another standard-bearer who represents what the Democratic Party used to represent.  (This primer from almost exactly eight years ago is instructive.)  As more current evidence, simply look at Texas superdelegates, i.e. predominantly Democratic elected officials and donors -- aka the only moderate Republicans left on Earth -- lining up early to support the establishment candidate.  As a result, I won't be able to endorse any Democrat who is a superdelegate that has already come out in support of Hillary Clinton.  This failure to remain neutral while the people decide who they wish to represent them is no longer acceptable.  It's not democratic; those people were elected to serve us in their respective legislatures and executive officees, not to pick our president for us.  (That's another preview of my forthcoming post on how you should consider casting your ballot in the Texas primary.)  Martin Longman of Booman Tribune and Washington Monthly further details why the superdelegates will derail, and not cross over to, Sanders ... which I covered last June.

I get so tired of explaining to Democrats why they actually lose elections.

And with respect to the tussle over the votes of people of color, that is a very vigorous conversation being had as well.  It will determine the success or failure of the Sanders revolution.  The only two excerpts you need ...

"He's speaking our language," said Congressional Black Caucus Chairman G.K. Butterfield (D-N.C.). Butterfield, who has endorsed Hillary Clinton, was on his way into the CBC's weekly meeting on Capitol Hill when he spoke with The Root. 

When asked whether he thought Sanders' critique was a broadside attack on President Obama's legacy, Butterfield emphatically said that he didn't think the criticism was directed at the president.  

"It's just political discourse," he said, smiling.

But there are clearly some feathers being ruffled. 

And ...

(Rep. Gregory) Meeks said that 90 percent of the 20-member board of the (Congressional Black Caucus)’s PAC voted to endorse Clinton, while none of the board members voted for Sen. Bernie Sanders and a few members abstained because they had not yet endorsed in the race. 

On the neutral list was Rep. James E. Clyburn (S.C.), the No. 3 House Democratic leader and  the most prominent South Carolina Democrat, who has since then said he is considering backing a candidate and that candidate, he suggested, is likely to be Clinton. 

“That was certainly my intention,” he said in an interview with The Washington Post of his initial plan to remain neutral. “But I am re-evaluating that. I really am having serious conversations with my family members.”

I'll be watching and Tweeting tonight with all of this as the backdrop.