It didn’t take long. Within minutes of confirmation that Supreme Court Justice Antonin Scalia had passed away on February 13th, the lines were drawn: the President shouldn’t even bother sending a nominee to the Senate, where certain rejection awaits – because we don’t fill judicial vacancies in an election year…or…the Senate has a responsibility to give a nominee an honest hearing, and should vote for said nominee based on their qualifications for the highest court in the land.

Of course, these positions are both fantasy in 2016, in the same way a Rockefeller Republican or a Southern Democrat is now fantasy. I eagerly await the dinosaur-like museum installation documenting the existence of Sam Nunn or Jacob Javits. Unlike the dinosaurs, however, we actually have an exact time when the rules changed for the nomination and confirmation of Supreme Court justices…the summer of 1987.

Getting “Borked” became a verb after his confirmation hearings, but nobody can say they didn’t see it coming. Justice Lewis Powell retired in 1987 (a fairly conservative justice, he had been nominated by President Nixon in 1971, and confirmed by an 89-1 vote), but Senate Democrats had warned President Reagan that anybody too ideological would run into “a solid phalanx” of opposition.

On July 1st, 1987, Reagan nominated Bork, anyway.  45 minutes later, Senator Ted Kennedy unloaded on the Senate floor.  Four days later, Republican Senator Bob Packwood said he would participate in a filibuster if Bork wouldn’t publicly declare that Roe vs Wade was settled law (times have changed). And it went downhill from there for Bork: He eventually was defeated 58-42, largely on party lines.

There was no debate about Bork’s qualifications to be a Supreme Court justice – by all accounts, he was a brilliant legal mind. He also was unquestionably an originalist (not unlike Justice Scalia), and while he was hardly the first Supreme Court nominee to be rejected or withdrawn (he was actually the 28th nominee to not be confirmed), he was one of the few to be rejected entirely on ideological grounds. He also was arguably the most qualified nominee to be rejected in American history.

It is extremely unlikely that President Obama will nominate somebody as ideologically pure on the left as Bork was on the right. Indeed, rumors of Nevada Governor Brian Sandoval – a Republican – being vetted suggests Obama will look for somebody who would make Senate Republicans look petty to not even consider.

But the analogy from 1987 that is relevant to 2016 involves what happened after Bork’s rejection by the Senate.  After Judge Douglas Ginsberg was nominated – and then withdrawn due to the discovery that Ginsberg had used marijuana in college (did I mention times have changed?) – the country was approaching a presidential election year. Reagan knew he had to get a more amenable nominee to the Democratic-led Senate to have a chance of confirmation.

In late 1987, Judge Anthony Kennedy was nominated, and confirmed without opposition, 97-0.  For over 25 years, Justice Kennedy has been the swing vote on many, many 5-4 decisions. It is difficult to overstate how different the Court would have looked for the next 25 years had the Senate confirmed Bork, rather than Kennedy.

Republicans and conservatives may be disappointed by this break of the game, but it was evidence that government could still work. A Republican icon (Reagan) and a liberal icon (Ted Kennedy) could agree that Anthony Kennedy was acceptable to all involved, and certainly qualified for the Supreme Court.

Is there any question but that this is what should happen in 2016? President Obama won the last presidential election, and he has the right (indeed, the responsibility) to nominate a qualified person for the Court. He also has the political responsibility to consider bring forward somebody who has a legitimate chance of being confirmed in a Republican-led Senate, in a presidential election year.

The Republicans in the Senate have dominated two of the last three election cycles (2010 and 2014), and consequently have a majority of the Senate (not to mention dominant majorities in the House and in much of the country’s state-level positions). They also have the right – especially in the “post-Bork” era, to be fairly demanding about who they are willing to confirm. A liberal version of Bork would never get by, nor should she or he. The game changed in 1987, whether we like it or not.

But Senate Republicans do have an obligation to do what their Democratic brethren did in 1988 – if the President nominates somebody who is both well-qualified, and is a strong acknowledgement of the other party’s leverage in the process, then that nominee should have a legitimate chance of being confirmed.

This is how an institution as important as the Supreme Court, where the average age of nominees has been dropping as presidents more explicitly try to squeeze as much “lifetime” out of the lifetime appointment as possible, can work in a country that feels awfully divided right now.

One might expect that a number of other current justices – including liberals like Justice Ginsberg, and conservatives like Justice Thomas – will likely be replaced in similarly-partisan times. If so, and if we are willing to allow nominees to be “Kennedyed” as much as we now allow them to be “Borked”, we may end up with a Supreme Court full of relatively moderate justices over time.  We live in a time when it is hard for voices of moderation to be heard in the cacophony of hyperpartisanship. It would be comforting if the highest judicial voice of the land was a voice of moderation.


This morning’s meeting of the Portsmouth Chamber’s Government Affairs committee brought about 40 people through a snowstorm for a 90-minute conversation on the economics of housing in Portsmouth. A recap of the event was written in the Portsmouth Herald later on Friday.

While it was never intended to solve a 20-plus-year challenge in 90 minutes, there were at least three big questions which will form the basis of subsequent work on the topic of housing:

  1. What is our current housing stock in specific terms?
  2. How does it compare to where the need is, and where the need will be in the future?
  3. Where is that “delta” the most acute?

Generally speaking, in the whirlwind of activity and discussion about “affordable housing,” “workforce housing,” “public housing,” “microhousing,” “density,” it is increasingly clear that much of the community is not starting from the same set of assumptions and priorities.  What the restaurant community might define as the crux of Portsmouth’s housing challenge may be very different from how Pease-based technology businesses seeking labor would define our housing challenges.

We’ll be convening groups in the coming weeks to help quantify  our housing stock, and use qualitative  methods (such as focus groups) to understand individual sectors within our communities to define the deficiencies.  Then the opportunity to match problems and solutions may become clearer.

This Friday, in my role as Chairman of the Government Affairs Committee for the Greater Portsmouth Chamber of Commerce, I’ll be moderating a discussion on a challenge in Portsmouth that continues well more than a decade after it became an issue:  the economics of housing (affordable, workforce, and otherwise) in Portsmouth.

For those who have not already RSVP’ed, this Friday, February 5th, you’re invited to our monthly gathering of the Government Affairs Committee of the Greater Portsmouth Chamber of Commerce for a special discussion on the state of housing in greater Portsmouth. It is in the center of public discussion entering 2016, with members of the newly-sworn in Portsmouth City Council already proposing big ideas related to the limited supply of land and housing in a small city continuing to experience very high demand.

The impacts of market forces, land use regulations, and regional economic and demographic trends all contribute to the price, diversity, and supply of housing. Various community groups are engaged in understanding these factors, and Chamber members have expressed a strong desire to be a constructive part of this community deliberation.
As the Chair of the Government Affairs Committee, I’ve invited a cross-section of community leaders to have an informational discussion on this topic this coming Friday. It would be great if you are able to participate.  The details are as follows:
DATE:  Friday, February 5th
TIME:  8:00 to 9:30 am
WHERE:  Strawbery Banke’s Tyco Visitors Center
PROGRAM: Free-wheeling conversation will include comments from City Planner Rick Taintor; Portsmouth Transportation Manager Juliet Walker; Portsmouth Housing Authority Executive Director Craig Welch; Workforce Housing Coalition Board Chairman Kim Rogers; and a number of local elected officials, members of Portsmouth land use boards, leadership from locally-owned banks, and local leaders in the property development and business community.
– For planning purposes, it would be greatly appreciated if you could RSVP by emailing to There will be coffee and light food offered.
We typically meet on the first Friday of each month, focusing on an impactful issue to the community.  Following this meeting, our next Government Affairs meeting is scheduled for Friday, March 4th at the same time and location.  Upcoming topics will including parking and transportation policy; specific, concrete steps the business community can take to help address the opioid crisis; and strategies and opportunities related to Portsmouth’s significant tourism industry.

This Friday, in my capacity as the chairman of the Greater Portsmouth Chamber of Commerce’s Government Affairs Committee, I’ll be moderating a discussion on one of the most pressing issues New Hampshire faces today: the explosion in the use of, and addiction to, heroin.

New Hampshire is one of the most impacted states in the country, in terms of addiction, while at the same having fewer readily-available treatment options per capita than virtually any state. It has received national attention (ranging from the Daily Beast to the New York Times), and was identified as a top priority of our committee.  Thus, this Friday’s program – where you are both invited and encouraged to attend. It is free and open to the public.

It will take place this Friday, December 4th, from 8-9:15 am, at Strawbery Banke’s Tyco Center Conference Room, in Portsmouth. I’ll moderate a discussion with the following panelists:

  • Tym Rourke, Chair of Governor Hassan’s Commission on Substance Abuse, Treatment and Recovery, and Director of Substance Use Disorders Grantmaking and Strategic Initiatives for the NH Charitable Foundation
  • Helen Taft, Executive Director of Families First
  • Peter Fifield LCM HC, Manager of Behavior Health Services for Families First
  • A representative of the Portsmouth Police Department (tentative)

After an initial discussion among the panelists, the balance of the program will turn to audience Q&A. The doors open at 7:45 am with coffee and donuts.  The program begins promptly at 8 am, and formally ends at 9:15 am. Parking is FREE and adjacent to the Tyco Center at Strawbery Banke.  The public is welcome to participate. If you have questions, please email me at

So, in NH-1, one of the most competitive Congressional districts in the country, former Congressman Frank Guinta lost his home ward in Manchester.  A few minutes later, we heard that current Congresswoman Carol Shea-Porter narrowly lost her home ward.  This is going to be a long night…

Our first result of the 19 swing precincts in the key US Senate race between Sen. Shaheen and Sen. Brown.

Manchester, Ward 1:  In 2008, Shaheen got 49.6% of the vote against Sununu.  Tonight, she received 53.6% of the vote – almost 4% better than 2008.  That’s very positive news for Team Shaheen.

It has been said by a number of national political pundits that New Hampshire (along with North Carolina) may be the two most important states to observe early in tonight’s mid-term election results.  In fact, Chuck Todd of NBC News thinks New Hampshire is the best bellwether state in the country.  I’ll be doing radio analysis tonight on WTSN-AM 1270, starting at 7 pm (listen live by clicking here), and I’ll be taking it a step further:  What are the precincts that act as arguably the best bellwethers in the best bellwether state?

To answer that, I looked for what you’ll sometimes hear referred to as “+0 precincts”.  These are precincts that vote in nearly identical fashion, in terms of their partisan tendencies, to the state as a whole.  Generally speaking, if a candidate is doing well in these communities, they are probably doing pretty well statewide.

Here are the precincts that are, depending how you round your decimals, +0 precincts:

  • Shelburne (about .4 of one percent more Democratic than the state as a whole over the past decade)
  • Hampton
  • New London
  • Manchester Ward 1
  • Manchester Ward 7
  • Nashua Ward 2
  • Rochester Ward 5
  • Laconia Ward 3
  • Rochester Ward 1
  • Nashua Ward 9
  • Grantham
  • Northfield
  • Strafford
  • Laconia Ward 4
  • Richmond
  • Carroll
  • Dunbarton
  • Hillsborough
  • Allentown (about .4 of one percent more Republican than the state as a whole over the past decade)

These 19 precincts happen to also be a pretty good mix of urban and rural, region, and size, making it as good a sample as any.  It also happens to let us look at the 2008 US Senate race between then-Senator John E. Sununu vs then-challenger Jeanne Shaheen.  Head-to-head, Shaheen defeated Sununu statewide with 53.3% to 46.7%  (I pulled out the Libertarian nominee, Ken Blevens, for the purpose of creating an apples-to-apples, binary comparison in 2014.)

In 2008, in these 19 precincts, Shaheen exceeded her statewide percentage in:

  • Northfield (57%)
  • Carroll (56.6%)
  • Rochester Ward 1 (56.6%)
  • Hillsborough (56.3%)
  • Allentown (56.1%)
  • Laconia Ward 4 (55.9%)
  • Manchester Ward 7 (55.4%)
  • Rochester Ward 5 (55.1%)
  • Grantham (53.7%)

She performed below her statewide average in these remaining +0 precincts:

  • Richmond (52.7%)
  • Nashua Ward 9 (52.7%)
  • Nashua Ward 2 (52.7%)
  • Strafford (52.4%)
  • Laconia Ward 3 (52.1%)
  • Hampton (52%)
  • Shelburne (50%)
  • Manchester Ward 1 (49.6%)
  • New London (48.5%)
  • Dunbarton (45.3%)

You will note that Shaheen slightly underperformed overall in these 19 precincts relative to her statewide performance – suggesting that 2008 Democratic turnout efforts, which were highly successful under President Obama’s campaign’s efforts – were able to juice up Democratic turnout in other areas relative to Republican turnout.

Many people expect tonight’s results against Senator Brown to be tighter than those 2008 results against Senator Sununu.  There are also broad expectations that, in this off-year election, Republican turnout may be superior to Democratic turnout across the country.  We’ll know after tonight, obviously, but I will be watching these 19 precincts closely.  Team Shaheen would obviously love to replicate its nearly seven-point victory in 2008, but given the national environment and the final polls, that appears highly unlikely.  If you want to get a sense early on whether or not Senator Shaheen is headed to a second term, look at these 19 precincts.  If she gets similar head-to-head percentages tonight as she did in 2008, it suggests she has enough gas in the tank to win by a one-to-three point final margin.