The 2016 Race for the Presidency Begins…..on March 1st.

The US primary elections were not the brainchild of the Founding Fathers but an answer by 19th century Progressives to the exclusion of voters in choosing candidates for office. The federal measures were passed as the 17th Amendment to the Constitution and prevented US senators being selected “by cigar-smoking men in back rooms.” However, other legislation required a tiring and determined state by state reforming process.

The intention behind primary elections is to weed out weak and ineffectual candidates and end up with the best of the bunch. I suspect we might all agree that the primary process in the 2016 Presidential contest has been a spectacular failure.

“Trump Triumphs in Nevada.” “Hillary Squeezes by in Nevada.” “Rubio the Real Winner in Iowa.” These are the kind of headlines that have greeted American newspaper readers for the past few weeks. The media coverage reminds me of the person whose role in life is to liven up a television audience before the programme goes on air. He makes a few jokes to get the audience attentive, then with a rising enthusiasm rouses people to fever pitch.

There is a symbiotic relationship between presidential candidates and the media; each needs the other. The candidates provide the headlines and stories to help sell newspapers and have people watch news live on television. In exchange, the media provides candidates with publicity, sometimes unwelcome, occasionally delivering a death blow. Remember the 2008 run of Senator John Edwards of South Carolina. Before his own state’s primary, the voters were told of Edwards’ love affair while his wife was dying from cancer. The press used the trees of a Brazilian rain forest to report the story. In Edwards’ political backyard, his political life was ended.

What exactly has the media been reporting about the primaries over the past weeks? Shakespeare put it best when he claimed “Much Ado About Nothing.” The states which have voted so far are Iowa, New Hampshire, South Carolina and Nevada. In the aggregate, these states have 25 out of the 538 Electoral College votes. If I were to suggest the importance of these states in a Presidential election is minimal, I would be inflating the meaning of “minimal.”

An dispassionate observer might suggest that playing up the importance of the early primaries was the equivalent of suggesting the Durham Bulls could win baseball’s World Series. However, what should not be dismissed is the Americana of electioneering. The rules of the Iowa Caucus were put together in the mist of time and I doubt that fewer than six people fully understand them. In Nevada’s recent Republican caucus, there were reports of illegal vote-counting and voter registration mistakes in multiple caucus sites, not to mention disorganization leading to long lines at sites across the state. A ballot collector, someone meant to be impartial, was photographed wearing an “I support Donald Trump” baseball cap. At least there have been no charges of ballot-box stuffing but “vote early, vote often,” may well have been the day’s watchword.

The results so far, Republican and Democrat, are not much of a guide to the outcome of this year’s primaries. The real election starts on March 1st: “Super Tuesday.” Thirteen states and territories will hold primaries, including states with double digit Electoral College votes, such as Georgia, Massachusetts, Minnesota, Tennessee, Texas and Virginia. It is not until these states declare results that voters and observers alike will have an idea of who the Presidential nominee might be for each political party.

The Democratic race is straightforward enough. The choice is between the elderly so-called socialist, Bernie Sanders, who has had a long career in Congress and Hillary Clinton whose track record as First Lady, US Senator for New York and Secretary of State is extensive but tainted. I doubt that Sanders expected to get any traction in the race. His trump card seems to be the distrust in which Mrs Clinton is held. If she can overcome this perception and get the women voters to support her, I believe she will win.

The Republican race is anything but straightforward. Whilst The Donald has won three primaries, will he appeal to voters in industrial states? If he does, will the Republican Party base, not to mention its leadership, find Mr Trump an acceptable candidate or will the Party opt for Ted Cruz or Marco Rubio? Don’t dismiss the possibility that the Republicans will disown Mr Trump, in which event I am sure he will run as an independent.

The wonder of politics the world around is variables. The number of variables in this American election year is massive. I am often asked who I think will win. I’m waiting for next Tuesday’s results before even considering the question.

The Supreme Court is Front and Center.

“The Least Dangerous Branch.” 

If ever a demonstration was needed of how the political systems of the United Kingdom and the United States differ, one was provided this week. Supreme Court Justice Antonin Scalia has died, creating a vacancy on the bench of America’s highest court. Some influential members of Congress, including Presidential hopefuls, seemed to have taken Viagra, so hormonal were their reactions.  "The American people should have a voice in the selection of their next Supreme Court Justice," said Senate Majority Leader Mitch McConnell, immediately after news of Scalia’s death broke. "Therefore, this vacancy should not be filled until we have a new President."

James Madison termed the American Supreme Court as “the least dangerous branch,” realising that the judiciary would remain highly political within the governmental framework. The straightforward provisions of the Constitution give the President power, with the advice and consent of the Senate, to nominate judges of the Supreme Court. The President also has power to fill vacancies for a limited period whilst the Senate is in recess. However, it is no surprise to find the American process in appointing a new Supreme Court justice is one of the most highly-charged political experiences imaginable.

When a vacancy occurs in the Court, the President will consult with his senior advisers and appropriate interest groups such as The American Bar Association and the American Civil Liberties Union. The FBI will carry out a detailed background check, as will the Executive’s legal staff, who will consider any previous legal opinions and decisions made by the prospective judge before the nominee presents himself or herself before Congress.

The Senate Judiciary Committee is tasked with investigating and interviewing the candidate, who must submit himself or herself not only to questions about views on the law and past legal experience but also about personal history, views on abortion and the like. It can be gruelling for the nominee. Once this process is ended, the prospective appointment passes to a vote of recommendation on the floor of the Senate, where a simple majority vote is required.

Compare this with England and Wales where judges of the Supreme Court of England and Wales are now appointed pursuant to statute. Before this legislation was enacted, the highest English appellate court was the House of Lords ‘sitting as a judicial committee.’  Twelve Law Lords, sitting in panels of uneven numbers, hold the posts of the highest judges in the land. Their appointments used to be made under a system which was opaque. To fill a vacancy, the great and good of the legal profession would make a recommendation to the government and that would be that. Neither the legislature nor the public would be consulted. Now, statutory qualifications for appointment are specified. The Lord Chancellor, a political appointee, is responsible for convening a selection commission, which has statutory obligations to consult senior judges. Parliament is not involved. In other words, the process is hardly political, save for any infighting amongst the judges themselves about an appointment.

The American process seems simple on paper but the reality is quite different. Take the current case of Justice Scalia. He was a libertarian, a judge whose rulings on abortion, gun rights and campaign finance earned him plaudits from right wing Republicans. Unsurprisingly, his death brought tributes from the Republican Presidential nominees, some of whom have voiced opinions which appear to show either a total disregard or lack of understanding of the Constitution. For example, Presidential hopeful Senator Ted Cruz offered his opinion:

“We owe it to the nation for the Senate to ensure that the next President names his replacement.”

Where does the Constitution provide for such delay or a denial of Presidential powers? Other Republicans have suggested that a President should not have the right to nominate a new Justice during the final year of his Presidency. This is patent nonsense. It has occurred a number of times. For example, former President Ronald Reagan had some choice words for Congress in 1988, the final year of his second term, when Justice Anthony Kennedy was confirmed to his seat on the Supreme Court bench.

“I have no doubt that when we look back, 1988 will be a year of great accomplishment toward our goals. This is the year when Judge Anthony Kennedy will be confirmed and the Supreme Court will again be brought up to full strength. The Federal judiciary is too important to be made a political football.”

Republicans in Congress do not need to take such a hard line. They have a majority in the Senate and can block an Obama nominee on the floor in an up-or-down vote. Oddly, Senator Thomas Tillis, moving away from the Republican Party line, said the GOP would be happy to consider a candidate.

“If a candidate has an almost identical resume and capabilities as Justice Scalia, we will support but if he [the President] puts forth someone that we think is in the mould of President Obama's vision of America, then we'll use every device available to block that nomination.”

Tillis' remarks hardly count as an endorsement for Obama filling the court vacancy, but the fact that he isn't flat-out rejecting the idea of Senate confirmation proceedings sets him apart from other Republicans. Yet requiring a vacancy to be filled by a carbon copy judge is not just utter nonsense, it is unconstitutional. Where is the obligation in the Constitution for a replacement judge to hold similar ideals and legal views as his or her predecessor?

Nearly all Republican senators have lined up behind McConnell in saying Obama should hold off and let the next President fill the Supreme Court seat. That would leave the nation's highest court with an empty seat for at least a year. What seems to be scaring the Congressional Republicans most is that a new Obama appointee in the Supreme Court will culminate in majority liberal Court rulings. The Republicans should also be scared of losing their Senate majority in November’s election because of the way they are trying to play politics with the Court.

It is significant how lessons from the past are not learned. In 1953, Eisenhower nominated Earl Warren as Chief Justice, believing that Warren was “one of us,” a conservative who would ensure the Court would not rock the boat. Warren presided over a Court that expanded civil liberties and civil rights. Indeed, following the 1954 landmark decision in Brown v The Board of Education of Topeka, Kansas, which desegregated public education in America, Ike was heard to remark, “if I’d known what that son of a bitch would do, I never would have appointed him.”

Voters do not like the legislature or the executive playing politics with the Supreme Court. In 1935, the Supreme Court struck down much of Roosevelt’s New Deal legislation. After re-election, in 1937, retaliating against the Court, Roosevelt proposed expanding the number of justices in what became known as “the Court Packing Plan.” The Democrats held huge majorities in both Houses of Congress but nevertheless voted against the President. The message was ‘hands off, the Court is sacrosanct.’

I have not commented on the America media. It behaves as if there is a feeding frenzy. In 2010, President Obama nominated Elena Kagan a new justice. Fox News hastily established a panel on the day the nomination was made public. I heard one of the panel comment, “She looks like a dyke, so it follows she will be in favor of women’s rights and abortion.” So much for objective debate!

I believe that the Congressional Republicans will hurt themselves badly if the Senate Judiciary Committee refuses to hold hearings or if the Senate votes on idealistic party lines rather than the merits of an appointment. President Obama can have the last laugh by making a recess appointment and let the people decide on the issue next November.

There is a likelihood that the exercise of finding a new Justice will be repeated three or four times over the next five years. The likely furore amongst the politicians and media is unimaginable.

Sometimes, living in England is wonderfully peaceful!

Movies and Muckrakers

Recently, two motion pictures featuring investigative journalism have appeared on our screens. The documentary, “Attacking the Devil” relates how The Sunday Times and its Insight team uncovered the scandals of thalidomide. The other movie, “Spotlight,” features the Spotlight team of The Boston Globe and how, under the leadership of Walter “Robby” Robinson and editor Marty Baron, the newspaper exposed how more than 200 Roman Catholic dioceses around the world employed so called “men of God” who exploited their positions to sexually abuse children. Furthermore, the newspaper revealed how the Church paid more than $3 billion in compensation, as numerous bishops were forced to resign.

Investigative journalists are reporters who investigate deeply a single topic of interest, such as serious crimes, political and institutional corruption, and corporate wrongdoing. They may spend months or years researching and preparing their stories. This kind of journalism is very expensive and may lead nowhere, so newspaper editors will always keep one eye on their budgets. Accordingly, editors like Evans and Baron deserve huge credit for their courage in following these stories, especially when shareholders may query the return for investment.

Arguably, the film that sets the benchmark for investigative journalism is “All The President’s Men,” the story of The Washington Post and its investigation of the June, 1972, Watergate break-in. Reporters Bob Woodward and Carl Bernstein were encouraged by editor Ben Bradlee to follow the story when almost all other American newspapers believed it was a dead end. The film contains much myth, especially the supposition that The Post got Nixon. In truth, Nixon convicted himself through the White House tapes. However, The Post was on its own for much of the time as the Congressional investigation of Nixon’s administration and the Grand Jury inched slowly towards impeachment and prosecution.

Investigative journalism did not start with Watergate or thalidomide. In America, this type of journalism has enjoyed a long and distinguished history. McClure’s Magazine began its publishing life in 1893 and is credited with starting the tradition of watchdog or reform journalism, a profession coined by President Teddy Roosevelt as “muckraking.” The President used the term not as demeaning but in a congratulatory sense. As he explained, “these journalists use a rake to uncover what lies beneath the muck and reveal what exists.”

McClure’s had many famous writers who made regular contributions, including Ray Stannard Baker, Willa Cather and Lincoln Steffens. J. M. Barrie, Arthur Conan Doyle, and Jack London contributed stories and articles. McClure’s had competitors like Colliers but for almost twenty years, McClure’s set the standard for investigative journalism.

In the late 1890s, Ray Stannard Baker took on the United States Steel Corporation and its unfair monopolistic practices. In 1902, Ida Tarbell wrote a series of articles exposing the monopoly abuses of John D. Rockefeller’s Standard Oil Company. The President took notice of the public’s displeasure at the excesses of the Robber Barons and took action against the monopoly owners. In the face of the threat of antitrust legislation, the monopoly owners improved wages for their workers and reduced prices for their customers, as well as easing up on competition.

In 1906, McClure’s published an Upton Sinclair story about the Chicago Stockyards. The American public was outraged by the disclosures and Congress was quick to act, passing The Pure Food and Drug Act the same year. This statute remains in force. The same year, John Spargo exposed the shocking practices relating to child labour in a story entitled “The Bitter Cry of the Children.” National labour laws were passed by Congress but were savaged by Supreme Court rulings.

McClure journalists took on black civil rights, the plight of working women, tenement conditions and the boss system of city government. Sadly, McClure’s experienced defections by writing staff and went into debt. By the 1910s, it had ceased to be a force, as investigative journalism declined.

I am delighted that The Sunday Times continues to fund its Insight team. The Daily Telegraph, having uncovered the shocking practices by Members of Parliament in relation to expenses, continues to expose MPs’ wrongful practices. The Spotlight team at The Boston Globe continues to operate, for example exposing the scandals attached to the state’s spiralling healthcare costs. And occasionally, The Washington Post publishes wrongdoing in DC, especially among lobbyists.

Thomas Jefferson understood the importance of a free press. He said:

“A press that is free to investigate and criticize the government is absolutely essential in a nation that practices self-government and is therefore dependent on an educated and enlightened citizenry.”

As usual, Jefferson was right.