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Michigan Governor Makes Solid Supreme Court Appointment


Kudos to Michigan governor Rick Snyder on his latest judicial pick for the state Supreme Court. Today the governor announced that he would be appointing Judge David Viviano to fill the spot vacated by Justice Diane Hathaway, who resigned last month after a bank-fraud scandal that I discussed here on Bench Memos. Viviano will run for election to the position in 2014.

Judge Viviano was previously chief judge of the 16th Circuit Court in Macomb County, Mich. My sources praise Judge Viviano’s sharp intellect and principled judicial philosophy. Congratulations go out to him and to the governor on a solid appointment, one that should secure a decisive majority on that court for judicial conservatives.

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Iowa’s Fatally Flawed Judicial Nominating System


The Des Moines Register on Monday criticized Governor Branstad for his appointment of eight Republicans to Iowa’s judicial nominating commission. Iowa is a Missouri Plan state, and the commission, chaired by an Iowa Supreme Court Justice, is made up of eight governor-appointed nominees, and eight nominees elected by lawyers from their respective congressional districts. The Register argues that Iowa’s Senate should consider refusing Governor Branstad’s nominees, for being overly partisan. The Register’s complaints—based on actions that any competent governor would take — are nonsensical; Governor Branstad is, at best, returning bipartisanship to a fatally flawed nominating commission. 

The Register conveniently ignores that Governor Branstad’s appointments do not differ from those of previous governors. For example, in 2010, after twelve years of Democrat appointees, the commission, then 14 members, consisted of one unaffiliated member, eleven Democrats and two Republicans. Even though by any definition, this commission would be unbalanced, I can’t find any evidence that any appointments over the prior twelve years of Democrat control bothered the Register’s editorial board.

The Register also neglects that all Governor Branstad can hope to do is bring a semblance of balance to the commission, because his appointments are matched by the bar’s lawyer-elected appointees. I looked into the background of the remaining eight commissioners, and found that six of them were Democrats. Of the remaining two, one is a Republican, and one is unaffiliated with any political party.   

There are very damaging consequences for handing over a significant portion of the judicial nominating process to left-leaning special interests, and Iowa is exhibit A. Iowa’s Supreme Court is easily one of the most flagrantly activist in the country. In 2009, the court famously invented the right to gay marriage, as allegedly required under the Iowa constitution’s equal-protection clause. The court found that equal protection’s definition changed with each generation, and incomprehensibly cited the judiciary’s ability “to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change.”

Thankfully, in 2010, a full 54 percent of Iowa voters voted to deny retention for three of the justices, achieving something that virtually never happens in Missouri Plan states. Those justices were eventually replaced by Governor Branstad, who was forced to choose nominees from the lists forwarded to him by the state’s nominating commission.

The good news is, Governor Branstad’s three most recent appointees seem to have improved the direction of the court. But, so long as Iowa continues to be a member of the Missouri Plan club, allowing the state bar to stack the bench with like-minded (usually left-leaning) judges, don’t expect things to improve. Until substantial reforms are made, the Judicial Crisis Network looks forward to working with friends and allies in the state to begin the process of reforming Iowa’s broken judicial-selection system.

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Todd Zywicki on the CFPB’s ‘Policy-Based Evidence-Making’


The Consumer Financial Protection Bureau released its “qualified mortgages” rules a few weeks ago, a move that will dramatically alter the housing industry’s regulatory landscape. Unfortunately, the move also illuminates the need for structural reform to the CFPB. Qualified mortgages offer lenders protection from consumer lawsuits. Under the new rules, banks that offer non-qualified mortgages are potentially liable if they lend to borrowers who cannot repay their mortgage. Industry observers generally believe that the housing industry will discontinue most non-qualified mortgage products, rather than risk the liability.

This is a high-stakes rule for the CFPB. Offer too strict of a qualified-mortgage definition, and the CFPB could dry up the mortgage industry, leaving deserving consumers out of the housing market. Offer too loose of a definition, and the CFPB could make it too easy for unqualified borrowers to obtain a mortgage, exacerbating housing conditions that initially led to the financial crisis.

For a great summary of why this intervention into the housing market could do more harm than good, I highly recommend Todd Zywicki’s piece,“Policy-Based Evidence-Making at the Consumer Financial Protection Bureau.”

As Zywicki argues, a far-reaching agency like the CFPB will inevitably make political judgments, even if it feigns following an “evidence-based”decision-making process. Unfortunately, when the CFPB does inject itself into highly charged policy debates, no meaningful oversight process exists to correct the Bureau when it goes off track. Consumer czar Richard Cordray is not only free to push through expansive regulations on his own, but he also operates the CFPB without congressional appropriations oversight, or the fear of the president firing him at will. And this is not to mention his expansive power to subjectively prohibit, on a case-by-case basis, “abusive” consumer financial practices.

Even if the CFPB masterfully designed the mortgage industry’s rules this time, why should they have this sort of quasi-dictatorial power in the first place? The CFPB’s structural deficiencies — the subject of the constitutional challenge to Dodd-Frank — are reason alone to oppose the CFPB. No one should have this level of unchecked authority, regardless of their intent.

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Dodd-Frank and Small Banks


The Florida Chamber of Commerce Foundation is out with its 2012 Small Business Lending Survey of community banks and credit unions. The survey provides more evidence that Dodd-Frank is hurting small banks. A few highlights:  

  • “Ninety-six percent of community banks and credit unions expect to spend considerably more time and money on compliance with new federal regulations over the next three years.”
  • “Sixty-four percent of respondents stated that they will very likely or likely need to hire additional compliance staff over the next three years.” For many banks, this will entail doubling their compliance staff.
  • “[Sixty-four] percent . . . of community banks and credit unions said small business lending over the next three years will be negatively affected by the Dodd-Frank Act. Further, 72 percent said that the availability of customer services would be negatively impacted by the Dodd-Frank Act in the near future.” Additionally, “69 percent of all respondents believe it will hinder their internal business development in the future.”

I also recommend Representative Bachus’s Washington Times op-ed, which details how Dodd-Frank failed to end bailouts and too big to fail.  

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Monday Morning’s Great Big Rasmussen Roundup


This weekend and this morning, Scott Rasmussen releases a whole bunch of polls, mostly reassuring to Republicans.

Nationwide, 55 percent want to repeal Obamacare; 38 percent oppose repeal. That’s down from last week but within the usual range on this question.

The South Dakota House-seat race continues to look good for Republicans:

The latest Rasmussen Reports statewide telephone survey of Likely Voters shows [GOP challenger Kristi] Noem picking up 51 percent support against [Democrat incumbent Stephanie] Herseth-Sandlin, who receives 42 percent of the vote. Three percent (3%) prefer some other candidate in the race, and five percent (5%) are undecided. The latest numbers mark an improvement for the Republican challenger from the 49 percent to 44 percent lead she held in July.

In Delaware’s Senate race, Republican Mike Castle leads Democrat Chris Coons, 49 percent to 37 percent. In a Democrat-leaning state, it’s not inconceivable that this race gets more competitive, but it’s not terribly likely.

Conservative Republican Christie O’Donnell led a match-up with Coons last month, but that may have been an outlier:

Conservative activist Christine O’Donnell, who is challenging Castle for the GOP Senate nomination in a September 14 primary, now runs 10 points behind Coons. The Democrat gets 46 percent of the vote to O’Donnell’s 36 percent.  Ten percent (10%) favor another candidate, and eight percent (8%) are undecided.  Last month, O’Donnell was running virtually even with Coons, 41 percent to 39 percent.

And in New Hampshire, the GOP front-runner remains favored in the general election:

Former state Attorney General Kelly Ayotte continues to hold a double-digit lead over Democratic Congressman Paul Hodes in the race for governor of New Hampshire. The latest Rasmussen Reports telephone survey of Likely Voters in the Granite State shows Ayotte, a Republican, earning 51 percent support, her best showing to date, while Hodes picks up 38 percent of the vote. Four percent (4%) like some other candidate in the race, and six percent (6%) are undecided.

This is about what I expected in North Carolina:

North Carolina’s race for the U.S. Senate has grown a little closer this month, but Republican incumbent Richard Burr still holds a modest advantage over Democrat Elaine Marshall. The latest Rasmussen Reports telephone survey of Likely Voters in North Carolina shows Burr capturing 49 percent support, while Marshall earns 40 percent of the vote.

Meanwhile, the Kansas Senate race looks like a barnburner:

Congressman Jerry Moran, the winner of Tuesday’s hotly contested GOP Primary, leads Democratic Primary winner Lisa Johnston by better than two-to-one. Moran earns 61 percent support, while Johnston picks up 28 percent of the vote.

And finally, Michigan:

A new poll indicates Republican Rick Snyder has an early double-digit lead over Democrat Virgil Bernero in the race for Michigan governor. The Rasmussen poll shows if the election were held today, the Ann Arbor venture capitalist leads the Lansing Mayor and one-time State Senator 39-percent to 27-percent.

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Assessing NPR’s Poll on Those Most Vulnerable House Members


It’s only one poll, but it does suggest the original list of 99 was not outlandish at all:

For this poll, Bolger and Greenberg chose the districts where incumbents are considered the most vulnerable, and, in the case of open seats, the ones most likely to switch party control in November. Sixty are currently held by Democrats — many of whom won these seats even when voters in the same  district preferred Republican John McCain for president in 2008. The other 10 districts are the flip side — held by Republicans in the House, even though their voters went for Barack Obama in 2008.

These are this year’s swing seats — the political terrain where the battle for control of the House of Representatives will be won or lost. In this battleground, voters are choosing Republicans over Democrats 49 percent to 41 percent. 

A couple of things that jump out at me about the list of competitive districts: They deem PA-15 the 10th most competitive GOP-held seat in the House, which on paper is a reasonable conclusion, but note that incumbent Charlie Dent won by 17 percentage points in 2008 while Obama was carrying the district 56 percent to 43 percent. I don’t want to say he’s unbeatable, but to echo the slogan of a hard-charging big-city district attorney, I believe in Charlie Dent.

Minnesota’s Michelle Bachmann is on their list of most vulnerable GOP representatives, but she won by 3 percentage points in 2008, while Obama was carrying the state by 10 percentage points. I suppose it’s possible Bachmann could get beaten, but if she wasn’t washed out in the Obama tide of last cycle, the chances aren’t likely this year.

The newest House Democrat, Mark Critz, is on their list of most vulnerable members of that party.

Florida’s Alan Grayson ranks among the 30 most vulnerable Democrats.

There are seven Democrat-held House districts in New York that rank among the top 60 most vulnerable; I sure wish the GOP had some more help from the top of the ticket in that state.

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