Perry v. Schwarzenegger update and more

Perry v. Schwarzenegger is scheduled for oral argument in the Ninth Circuit one week from today, December 6. The three-judge panel, from this early vantage, looks like a good arrangement for Judge Walker's ruling, with established liberal Stephen Reinhardt of California (a Carter appointee), presumed liberal Michael Daly Hawkins of Arizona (a Clinton appointee), and presumed conservative Norman Randy Smith of Idaho (a Bush 43 appointee). Little is written about either Hawkins or Smith -- both keep a lower profile than the outspokenly leftish and frequently reversed Reinhardt -- but commentators generally expect Democratic appointees on the Ninth Circuit to be skeptics of same-sex marriage bans, so barring a major surprise this looks like a 2-1 split to uphold. We won't know until next summer, most likely, and from then it's on to the Supreme Court, unless the losing side convinces the Ninth Circuit to hear the case en banc (and in that scenario, liberals should again win the day).

Outside of the courts, there were midterm elections 27 days ago. The Republicans came back in a major way from 2008, gaining a whopping 63 seats (their largest seat gain number since 1938, and the largest for either party since the Democrats' 75-seat gain in 1948) to win control of the House of Representatives. They fell short of expectations in the Senate, though, gaining a respectable six seats but leaving the chamber at 53-47 Democratic when they were hoping to defeat Senate Majority Leader Harry Reid in Nevada, appointed Senator Michael Bennet in Colorado, Senator Patty Murray in Washington, and perhaps popular West Virginia Governor Joe Manchin. The GOP instead had easy pickups in Arkansas, Indiana, and North Dakota, and closer victories against Sen. Russ Feingold in Wisconsin and for open seats in Illinois and Pennsylvania, but fell short in critical states like Nevada and Colorado.

OVERALL NUMBERS

House before the election: 256 Democrats, 179 Republicans

House after the election: 242 Republicans, 193 Democrats

Senate before the election: 59 Democrats, 41 Republicans

Senate after the election: 53 Democrats, 47 Republicans

What happened in the House was really a two-tiered story. There were incumbent Democrats defeated because of the economy, with its 9.6% unemployment rate (the highest since the recession of the early 1980s), many of them in moderate suburban districts in the Midwest and Rust Belt, and then, more surprisingly, the Republicans also managed to dislodge some extremely entrenched veteran incumbent Democrats in conservative or GOP-trending districts. A surprising number of GOP gains this year were probably not wave year swings as in states like Illinois, Pennsylvania, New York, and Ohio, but permanent realignment steps. Among the defeated were longtime incumbents like Jim Oberstar of Minnesota, Solomon Ortiz of Texas, Rick Boucher of Virginia, John Spratt of South Carolina, Ike Skelton of Missouri, Paul Kanjorski of Pennsylvania, and Earl Pomeroy of North Dakota who had seniority and sometimes chairmanships. Some of these districts (Oberstar's Minnesota 8th, for example, or Ortiz's Texas 27th) are generally considered Democratic-leaning and may flip back, but others of these defeats seem to represent the death of a certain kind of Democrat and of a certain kind of district. The old back-slapping, pork-barreling heartland conservadem may finally be a memory.

The elections left the House more divided even than it was before, with a bulging new class of hardline anti-government, anti-spending conservatives forming the majority and a slimmed-down Democratic caucus that is arguably more liberal than ever. Such a shift is not as apparent in the Senate, where some Tea Party favorites (Marco Rubio, Rand Paul, Pat Toomey) won and others (Sharron Angle, Ken Buck, John Raese) lost. Evan Bayh and Blanche Lincoln, two conservative Democrats, are gone, but a new conservadem is in town: Joe Manchin. The Senate may thus be far more amenable to compromise, as it often is, than the House on hot-button issues like extending the Bush tax cuts. Bottom line: as budget talks near, expect major partisan fireworks in Congress, and expect serious gridlock between a rowdy Republican House and a reticent Democratic Senate. The 112th Congress is coming to a blog near you next January.

Finally, the Census results are due to be reported at the beginning of 2011, and as some of you know, redistricting is around the corner. The huge GOP gains of 2010 put Republicans in a position to draw effective gerrymanders in major prize states like Florida, Michigan, Ohio, Pennsylvania, Georgia, Texas, Wisconsin, North Carolina, and Indiana, while Illinois remains the one real opportunity for Democrats to make gains. But this might mean less than you'd think: Republicans controlled many of those states in 2001 as well and their gains are largely maxed-out in several of them (Pennsylvania, Ohio, Texas, Florida, and Michigan, at least). Meanwhile, California has finally joined the nonpartisan redistricting bandwagon, Florida's new redistricting guidelines (which bar drawing districts to favor or disfavor a political party) are being challenged in court, and partisan gridlock should make for compelling drama in places like New York, Virginia, Minnesota, Missouri, and Nevada. Stay tuned! See you all in 2011, unless I see you sooner.