David Frum thinks that Bobby Jindal would be a better vice presidential candidate than Marco Rubio.  So do I, but I can’t endorse Frum’s reasoning.  Frum writes that Republicans are better off going after Asian-American voters with Jindal as VP than going after Latino voters with Rubio as VP.  I think that Jindal and Rubio are better contrasted based on who is better prepared to be President, who has more political accomplishments and who would be better at helping Romney sell his message.  I think Jindal wins on all of those counts (though I can see grounds for reasonable disagreement on the last one.)

I also think Frum’s analysis of the ethnic politics of Jindal and Rubio is mistaken and overstated.  Take a look at the 2004 and 2008 exit polls.  The results for Latinos and Asians look very similar.  The Republicans won over 40% of both groups in 2004 and between 31%-35% of both groups in 2008.  The first conclusion to be drawn is that circumstances and the candidate at the top of the ticket (probably in that order) matter most and that Republicans could reasonably hope to somewhat improve over their 2008 performance with both groups – though probably not win a plurality with either group without some kind of huge disaster between now and November.

I think that’s about the best speech that Romney can give and by far the best I’ve seenfrom Romney .  He found the range on the whole “fairness” thing.  It also comes across pretty authentic-seeming.  You can believe that Romney believes his optimism/business class meritocracy (as distinct from Obama crony capitalist)/economic growth/rising living standards stuff.  Romney’s speechwriter or speechwriters deserve a lot of credit and Romney too.

One small quibble.  the stuff on Greek columns was small and unfortunate.  It isn’t even good at being cynical politics.  If you remember and resent that Obama had Greek columns at his Democratic National Convention speech, then you already aren’t voting for Obama.  If you don’t remember the Greek columns, Romney’s speech momentarily became a little harder to follow.

or smart, public spirited guys disagree.  Mitch Daniels says that Romney ought to “. . . Spend the precious time and dollars explaining what’s at stake and a constructive program to make life better. And as I say, look at everything through the lens of folks who have yet to achieve.”  Reihan Salam responds that “I’m not sure the lasting impact on public opinion of a campaign that seeks to enrich the public’s understanding of broader economic and policy challenges will outweigh the lasting impact of the policy changes that will likely occur if the president is reelected. If the Republican presidential candidate has a reasonable shot at winning, and there is good reason to believe that he does, learning from and effectively responding to the Obama campaign strikes me as the most responsible course of action.”

I think that they are both right under the circumstances.  Romney needs to learn from and effectively respond to the attacks of the Obama campaign and the Obama campaign’s media allies.  But to do that, Romney is probably going to have to be able to defend a “a constructive program to make life better.”  That’s because Romney is already committed in important ways.  Romney has already come out for premium support Medicare, raising the Social Security retirement age and reducing the growth in benefits for life time high earning future retirees.  And good for him.  Romney has come out for capping federal spending at 20% of GDP.  By way of comparison, Paul Ryan’s most recent budget doesn’t bring federal spending down to 20% of GDP until sometime after 2030, and there are reasons to think Chairman Ryan’s budget doesn’t include enough money for infrastructure among other things.  to a large extent, Romney being able to parry Obama’s sharpest substantive attacks (not the silver spoon stuff) is going to have to involve either making the public comfortable with Romney’s announced reform proposals or else praying that the swing-voters Romney needs are so mad about the economy that they don’t listen to anything Obama has to say.

Now the voters who are going to make the difference in this election aren’t going to be comparing Romney’s proposals to the CBO score of the Ryan budget.  But Obama is going to have hundreds of millions of dollars for ads.  Most of the broadcast media will repeat Obama’s attacks pretty uncritically.  If they don’t hear about Romney’s entitlement reforms (and plans to spend less but also tax less) from Romney, then they are going to hear about them from Obama and they will hear the “Granma’s gonna be left to die, the sky is falling” interpretation of Romney’s proposals.  And even some people who are unhappy with the economy might end up voting for Obama if they think Romney is going to hurt the elderly and gut core government services.  So yeah, as a matter of both good politics and good policy, Romney would be better off investing a lot of time explaining why premium support Medicare will be better for seniors than an Obama plan which spends the same amount of money, but sets up a central committee to decide what medical procedures the elderly receive.  Romney would be better off explaining how giving somewhat fewer Social Security benefits to affluent future retirees might help keep taxes down on current workers, improve economic growth, and provide more jobs for those “folks who have yet to achieve.”  Romney has a case given that the Obama administration’s plan is to raise taxes, cut defense spending, and still have the country go broke by 2027.   There would still be plenty of time left over to hit Obama on his economic record.

I agree with Reihan Salam that Romney’s across-the-board income tax cut proposal was a bad idea.

So I was listening to the 1:00 PM NPR show and the host said that he had a source in the Obama White House who told him that they expect to lose a 5-4 ruling (presumably that means at least the striking down of the individual mandate), but that they expect to use the ruling to rally the public to reshape the Supreme Court.  This strikes me as unlikely.  There will be some people who will be upset with a Supreme Court ruling striking down Obamacare.  The problem for Obama is that the people who are really supportive of Obamacare are already for Obama.  An agenda of reenacting the most unpopular part of an unpopular law because Obama is less partisan than the Supreme Court and understands the Constitution better than  the Supreme Court isn’t likely to appeal much to the median voter.  The median voter already thinks the Obamacare individual mandate is unconstitutional and should be struck down.  A Supreme Court ruling against Obamacare is unlikely to increase Obamacare’s popularity or popular legitimacy.  It will also hurt public perception of Obama’s competence to have the Supreme Court strike down (in whole or in – crucial – part) his most important legislative achievement.

A Supreme Court ruling against Obamacare also helps Romney beyond the direct damage it does to Obama.  Democrats like to mock Romney for the similarities between Obamacare are Romneycare.  Those similarities are real and substantial.  Both Romneycare and Obamacare include an individual insurance purchase mandate, insurance coverage mandates, direct subsidies for insurance purchase, guaranteed issue and community rating (Massachusetts had the last two before Romneycare , but they were retained in that law.)  A Supreme Court ruling against Obamacare increases the political salience of the differences between those two laws.  The two biggest differences are that Romneycare only applied to one state and that Romneycare was a use of the state government’s police power rather than an unprecedented extension of federal government power.  So a Supreme Court ruling against Obamacare would allow Romney to say:

1.  ”Unlike President Obama, I was never arrogant enough to believe that the federal government should impose a one size fits all plan where Washington tells every single American what kind of health insurance to buy that and then forces them to buy it.”  Actually, Romney already says that, but it sounds better if the Supreme Court has struck down Obamacare and left Romneycare standing.

2. ”Unlike President Obama, I wasn’t absent the day they taught the Constitution in law school.  I, like most Americans, believe that the federal government doesn’t have the power to force Americans to contract with private companies to purchase products they don’t want.    Thank God the Supreme Court agrees with the American people, and as President, I’ll work for a health care law that makes health care affordable for more people while respecting the Constitution and the freedom of the American people.  That’s change we can all believe in.”  Romney could probably find a less jerky way to make the point, but however he phrases it, the argument works better if the Supreme Court has endorsed that interpretation of the Constitution.

This is sounding way too optimistic for me, so several caveats:

1.  The economy (job creation, energy prices, disposable income) will still be a big issue and the economic numbers will have a huge impact on Obama’s job approval rating.  If the economic numbers get good enough, fast enough, then Obama can probably take a Supreme Court hit on Obamacare and still win reelection.  Not much that Romney or anyone else can do about that.  If Obama’s job approval on the economy stays below 50% then a Supreme Court ruling against Obamacare probably reduces Obama’s reelection chances by I-don’t-know-how-much.

2.  I never, ever trust Anthony Kennedy to get it right.

when he writes “ if pressure could be put on Bush to nix Harriet Miers in lieu of Samuel Alito, then I suspect that, if circumstance opened the opportunity to appoint a Supreme Court justice, similar effective pressure could be put on Romney from conservatives.”  Romney might be willing to take the political hit from conservative legal activist groups if he nominates a David Souter-type mystery meat Justice.  He might even be willing to take the hit from right-leaning voters.  What are they gonna do, vote for Democrat X in 2016?  But if it is clear that a plurality of Republican Senators will oppose such a nomination quickly, loudly, and persistently, then the calculation changes.  The ideological incentives for most of the Democrats would be to support such a Romney nomination as the best that they are going to get under a Republican President and work with moderate Senate Republicans whatever other Republican Senators the Romney administration can suborn to okay the nominee.  The partisan incentives for the Democrats as a whole would be to stand aside and enjoy the Republican civil war (kinda what they did during the Miers controversy) or attack the nomination from a different angle as a way to politically weaken Romney.  so if Romney can count on the mass of the Senate Republicans to insist on at least a John Roberts-style Justice and he can count on immediate and intense opposition for anything less, then he would politically be better off nominating a John Robert-type.        

All this of course is working from the assumption that Romney would be totally cynical about who he nominated for the Supreme court.  Maybe he wouldn’t be.  I’m using the cynicism model as a worst case scenario on how Romney might deal with the political incentives of the  judicial issue.

speech to the NRA today.  The stuff on four more years of Obama meaning forty more years of an Obama Supreme Court was pretty good for his intended audience, though I think that a focus on specific issues would help Romney more with both right-leaning and swing-voters.  If any of the five not-consistently-liberal Justices leave office during an Obama presidency, we are going to have a solid 5 vote liberal majority on the Court (it is also possible that Ruth Bader Ginsburg might retire during a second Obama term and let him appoint a younger liberal Justice.)  Anthony Kennedy and Antonin Scalia are 75 and 76.  I wish them all very long lives and good health (Justice Ginsburg too), but who wants to bet that the five not-consistently-liberal Justices will all stay on – or be able to stay on – through a second Obama term?  It is very possible that they would all stay on, but I’d prefer not to have to see how such a bet would turn out.

So what would it mean to have a Supreme Court where Stephen Breyer was the ideologically median Justice?  Off the top of my head I’m guessing that HELLER and MCDONALD V. CHICAGO would likely be reversed.  Obama’s first Supreme Court nominee (Sonia Sotomayor) voted against incorporating the Second Amendment against the states.  I don’t expect Kagan to vote any different if the issue came up.  Obama doesn’t talk much about gun control, but he is one Supreme Court pick (if it is for any of the five not-consistently-liberal seats) away from a Supreme Court ”collective right” interpretation of the Constitution.  One more liberal Supreme Court Justice also means that overturning (or even the eroding) of ROE is much more difficult and lengthy.  It also means a more radicalized abortion jurisprudence.  Say goodbye to the federal (and any attempted state) prohibitions on partial birth abortion.

So that is some of what an Obama second term might mean for the Supreme Court.  What does Romney mean when it comes to the Supreme Court?  I dunno.  The cynical take is that he will do what he finds expedient.  Let’s go with that one for the sake of argument.  I’d rather take my chances with Romney gaming out the politics of who to name on the Supreme Court than a second term Obama having the “flexibility” to pick a Supreme Court Justice (or Justices) that suited his ideological preferences.  I don’t like that choice, but it is the choice we have and I don’t see how it is close. 

As a political matter, Romney would do well to hit, with specificity, on the policy implications of an Obama Supreme Court.  If he can frame the issue as an Obama reelection meaning a) the end of constitutional Second Amendment protections, b) the return of partial birth abortion and c) a Commerce Clause interpretation in which Congress can force anyone to contract with  a private company to buy a product they don’t want, then Romney has a strong case that he can take to both conservatives who might be leery of him and to swing voters who are leery of judicial liberalism (to the extent they are reminded what judicial liberalism means in practice.)

1.  If Romney is “doomed” (in the sense that he will lose regardless of whatever strategy he employs or whatever gaffes he does or doesn’t make), then it will be because the public perceived the economy to be improving enough that the marginal voters(s) decided that Obama is basically doing a good job.  Romney probably isn’t going to win over a voter who approves of Obama’s job performance.  Another, hypothetical, Republican candidate might or might not have been able to win over a tiny number of Obama-approvers and thereby win an election where Obama has 51% job approval, but it isn’t going to be Romney. But if Obama’s job approval is under 50% (even just a little under), then Romney has a legit shot.

2.  I’m not sweating the head-to-head matchups.  Yet.  Obama’s RCP job approval average is under 49% and the two most recent polls show him at 48% and 45%.  We have this thing where, when Obama’s polls are on the upswing, people focus on the polls that show him highest and take those as the new reality.  So when his average is in the high 40s people focus on the poll or two that shows him in the low 50s.  When Obama’s RCP average dips to the mid 40s people focus on the poll or two that shows him in the low 40s.  The reality is that Obama’s approval ratings, when averaged across the polls, have him in a very narrow range.

3.  Romney is a mediocre candidate.  Conservatives don’t trust him.  I’m not sure moderate voters look at him with any kind of enthusiasm.  But look at the alternatives.  Does anybody wish we were seeing Rick Santorum having biweekly culture war-related meltdowns for the next six and a half months?  A Gingrich general election candidacy would have been some combination of a hostile satire of conservatism and a horror movie.  Pretty much any fair minded person can look at Romney and see a smart, informed on public issues, managerially competent, personally decent man with a record of executive experience.  That’s something.  I think that there might have been Republican candidates who would have been better suited to the moment as a matter of both politics and policy, but I have two reservations:

a)  They chose not to run.

b)  We don’t actually know how they would have done in the heat of a presidential election.

4.  If the Supreme Court strikes down the mandate and leaves the rest of the law in place, then Romney will have the obvious argument that the rump law will drive up health insurance premiums.  If the Supreme Court strikes down more of the law, then Romney can argue that our constitutional law professor President spent much of his energy, during economic hard times, fighting for an unpopular and unconstitutional law that we don’t even have anymore.  All that and high gas prices too. 

or learn to live with him anyway.  There was this moment, just before Michigan, when it seemed possible to avert a Romney nomination.  That doesn’t mean that we would have gotten a Santorum nomination.  If Santorum had won Michigan, it is possible that Romney’s's establishment support and his electability/competence supporters would have abandoned him and opened the way for a late entrant and a contested convention.  If Romney couldn’t beat Santorum in Romney’s home state, then Romney would be neither all that competent nor all that electable would he?  But Santorum couldn’t avoid one pointless and self-destructive culture war fight after another. He could not control his political vices, and so we have Romney.

I think there are multiple reasons why the Trayvon Martin incident has become a big deal socially.  I have a low opinion of the motives of Al Sharpton and Jesse Jackson, and I think Carl gets at some of the truth.  When something gets this big, a lot of different kinds of people and a lot of different interests get involved.  You get the Jesse Jackson coming to town and you get NBC editing the George Zimmerman audio tape.  But the Trayvon Martin controversy was more than that and there was something spontaneous in much of the reaction.  A lot of young African-Americans and Latinos with little or no interest in politics took a very sudden interest in the shooting of Trayvon Martin.  I’ve talked to some of them (a tiny fraction of course.)  They don’t know and don’t care about Jesse Jackson.  They weren’t born the last time Jackson ran for president. They would no more choose to watch Al Sharpton’s MSNBC show than they would watch choose to watch C-SPAN3.   The Trayvon Martin shooting, as it was originally reported, resonated with them.  They had experience of being followed or hassled by suburban cops.  They had the sense that, if they were away from home ground and anything went badly wrong and the situation was at all ambiguous, the local authorities would collude to screw them over.  It wasn’t Jim Crow and they knew enough of history to know it wasn’t Jim Crow, but it still felt like the majority of the places in the country were hostile ground to them.  It made them feel peripheral and they knew that there were millions of other Americans who could, as strangers, walk those same streets and face fewer hassles and risks.  Whatever happened in the Trayvon Martin shooting, these feelings are real.

So the reporting of the Trayvon Martin shooting fit into a narrative that these young people carried around with them.  A local adult suburban racist picks a fight with a innocent black kid who was getting Skittles.  The black kid kicks the racist’s butt in a fair fight.  The racist then shoots the black kid and the authorities cover it up.  It sounded right and it was infuriating.  It felt like their own experiences (or those of their friends) only taken to heroic proportions and ending in martyrdom.  It was the clearest possible example of how they felt the world worked for them and a lever to focus their efforts not only to get justice (as they saw it) in this one case but also a way to get other people to acknowledge what happens to them on a much smaller scale – a scale that doesn’t show up in the murder statistics. 

More of the facts will come out and we’ll see how much and what parts of the above narrative hold up.  I don’t have any public policy suggestions.

Do you know that the Supreme Court struck down a federal economic regulation in Lochner v. New York?  President Obama knows it.  It just isn’t true.  I think Carl got the tone just right in his comments in this thread.   Carl writes:

But with Obama, it’s important to not to exaggerate in a way that makes you ignored–don’t be the boy who cries wolf.

Particularly since on lots of issue, the possibility of a real wolf showing up can’t be discounted–not with this president.

More to the point, the public needs good education on con-law, from their pundits also, and the more they instead get boiler-plate Republican rhetoric, accusations of “he THREATENED the Court,” etc., the less they learn to see the real scandal:

This guy despises clarity about the Constitution–he will obfuscate at every point he can get away with, and the MSM is even worse about it than he is.