Cruz Suggests Leaving Supreme Court Vacancy Open Indefinitely

If Hillary Clinton wins the White House and Republicans hold the Senate, please locate the nearest fall-out shelter, which may be behind you. It's possibly going to be nuclear war. Sen. Ted Cruz (R-TX) has now joined Sen. John McCain (R-AZ) in proposing to leave the seat of the late Supreme Court justice Antonin Scalia vacant indefinitely, effectively meaning "until there is a Republican president," which could take 4, 8, or more years. Constitutionally, there is no reason the Court can't have 8 justices. The number is set by federal law and has varied over the years from 6 to 10. Thus, the Senate would be clearly on viable constitutional grounds refusing to confirm any of appointees of a potential President Clinton. Of course, some day the shoe might be on the other foot, with a Republican president and a Democratic Senate, but maybe the Republicans will take their chances on that.

Needless to say, after pleading with the Senate to do its job for a few months, Clinton's patience might run out. There are things she could do on her own to get some things decided, however. For example, suppose she issued an executive order saying that no undocumented immigrant who has been in the country for at least 5 years, has no criminal record, and who has paid federal income taxes will be deported, nor will any members of that person's family. The Republicans would immediately sue her. She could probably successfully argue that the case should be heard in D.C., and the resulting appeal should be heard in the U.S. Court of Appeals for the District of Columbia. There are currently 11 active judges on the D.C. Circuit Court, of whom Merrick Garland is the Chief Judge. One of the judges was appointed by George H.W. Bush, three were appointed by Bill Clinton, three were appointed by George W. Bush, and four were appointed by Barack Obama, giving Democratic appointees a 7 to 4 majority. If they decided this case (or any other case about executive orders) in favor of the President, the Republicans would appeal to the Supreme Court, which would likely split 4 to 4, leaving the D.C. Court ruling as binding. Clinton would quickly discover that the only way to govern was by executive order and rulings of the D.C. Court. It wouldn't be pretty, but it would be legal until a future Supreme Court took up the cases. (V)

It's Not Just the Supreme Court, Though

In the past few days, some Republicans on Capitol Hill have been threatening all different kinds of (ab)uses of their powers, should Hillary Clinton become president. There's blocking any Supreme Court nominees, as noted above. There's blocking other nominees, as well as any legislation. And, as we know well, there's the ability to conduct investigations. Said Rep. Jason Chaffetz (R-UT), "Even before we get to Day One, we've got two years' worth of material already lined up. She has four years of history at the State Department, and it ain't good."

As regards the investigations, in particular, it's hard to understand what Chaffetz might be playing at. We must assume that, with the e-mail server and Benghazi, Congressional Republicans have already hit on the two biggest, juiciest targets available. And, as we know, they didn't achieve much. Some Americans are persuaded that Hillary Clinton is corrupt, some think she's not, and some don't care. Whatever group a voter might be in, another investigation or six isn't likely to change their minds. If Chaffetz's goal is to somehow prove criminal misdeeds and to disqualify Clinton from the presidency, then he's counting on several longshots, including a successful impeachment proceeding.

And if Chaffetz, Cruz, McCain, et al. are actually speaking for most or all of their colleagues, then the GOP is planning to play a risky game, indeed. This is a party whose image has already taken a beating in 2016. While it's true that the job of the opposition party is to oppose, this would be taking things to levels not seen in a very long time (perhaps since the South's pro-slavery obstructionism of the 1850s). With a gaggle of high-profile incidents—the government shutdowns, the Benghazi investigation, perhaps a second attempt at removing a Clinton from office—voters may sense that the GOP has no interest in governing, and is only in the business of hurting the other side. That could be a powerful argument for the Democrats, even in the midterm elections (which historically tend to go against the party that holds the White House). There aren't too many historical parallels for a party being this openly and aggressively committed to digging their heels in, but it is certainly the case that Harry S. Truman had great success running against the "do nothing Congress" in 1948.

With that said, it's not at all clear that the obstructionists really are speaking for the whole party. Sen. Jeff Flake (R-AZ), for example, said, "There is a difference between what might be constitutional and what you can do politically...I think leaving a vacancy for up to four years is not why we are here." Cruz, in particular, has seen his brand damaged enormously in 2016. Leading the fight against Merrick Garland (or some other nominee) might allow him to reclaim the mantle of "political outsider who fights the establishment," even if he ultimately loses (as he ultimately did when leading the government shutdown). So while four years of gridlock is definitely possible, it's not a certainty quite yet. (Z)

A Surprise Secretary of State Candidate

Hillary Clinton's transition team is busy right now trying to put together lists of potential appointees, particularly Cabinet secretaries, so they can hit the ground running in the event that things go their way on November 8. On Thursday, well-placed insiders leaked the name of someone apparently being considered for Secretary of State, and it's something of a curveball: Vice President Joe Biden.

Consistent with how this process works, nobody has talked to Biden yet, so he may or may not be interested. Still, it's easy to see the appeal of appointing him. Having him in the Cabinet would give Clinton the most popular member of the Obama administration not named Obama; this would allow "Barack Obama's third term" to get off on a good foot. And Biden is certainly well qualified for the job, he served on the Senate Foreign Relations Committee for nearly a decade (including a stint as chair), and the White House describes him as, "a leading architect of the U.S. strategic vision of a Europe whole, free and at peace." Biden even knows where Aleppo is, and that Russia has already gone into Ukraine. So, you know, bonus points.

With that said, there are some considerations that will definitely give Clinton pause, even if Biden wants the job. To start, he'll be 74 years old on Inauguration Day, which is getting a tad bit long in the tooth for a demanding job like being America's top diplomat. It's also the case that current Secretary of State John Kerry (who is himself 72) loves the job, and has signaled an interest in staying. Sending him packing with a gold watch and a "thanks!" could make the New England Democrats unhappy, particularly Kerry's good friend Sen. Elizabeth Warren (D-MA). This kind of thing is why Abraham Lincoln, when he was told by newspaper reporters of his victory in 1860, said, "Well, boys, your troubles are over now, mine have just begun." (Z)

Trump Has Three Major Voter Suppression Programs in Place

A senior official in the Trump campaign has bragged that the campaign has three separate voter suppression programs in place. First on tap are white liberals. They will be suppressed by highlighting Hillary Clinton's earlier support for the Trans Pacific Partnership deal, which Trump opposes, along with Sen. Bernie Sanders (I-VT). Second, to suppress the women's vote, Trump is going to keep harping on the fact that Bill Clinton is a sexual predator. Third, to suppress the black vote, Trump will keep hitting Hillary for her 1996 remark that some young blacks are "superpredators."

Technically, this is not voter suppression. It is more just trying to sour three of Clinton's main constituencies on her. Furthermore, it is far from clear that any of this will have much effect at this late date. Sanders called Trump a "coward" for using this approach, saying that Trump didn't have the guts to run on his own ideas for governing. (V)

Clinton Raises $100 Million in October; Trump Much Less

In the first 20 days of October, the Clinton campaign has pulled in $100 million. The donations came from 2.8 million donors, of whom 60% were women. The campaign and its allies have $153 million in the bank for the final 10 days of the campaign.

Donald Trump, meanwhile, was a bit less successful. His campaign raised just $29 million over the same period, leaving $68 million in the bank—less than half of Clinton's total. Of the $29 million, a mere $31,000 came from Trump himself, which means he will need to cough up $4.5 million a day in order to fulfill his campaign pledge of donating $100 million to his campaign. If he fails to do so, not only will he be breaking his promises, but his campaign will also run out of cash, since they are now spending far more than they are taking in.

Of course, there are always the superPACs, right? Well, there's no good news for The Donald there, either. Clinton's main superPAC took in $175 million in the first part of October; over the same period Donald Trump's top 12 superPACs combined for just $65 million. It's almost like the donors have given up on Trump, for some reason. (V & Z)

The South Is Not as Red as It Used to Be

Much of the South will go for Donald Trump on Election Day, but the Republican Party is not nearly as strong there as it used to be. Virginia is lost, probably forever. North Carolina has become a purple state. Florida is a light-blue state, and even Georgia might vote for Clinton this year.

That Georgia is in play is a new development. Clinton is making serious inroads in the conservative suburbs around Atlanta. In a sense, she is the conservative candidate this year. Voters know about what they can expect from her, whereas Trump is a wild card. He could really upset the applecart, and suburban voters don't like that so much. Georgia as a whole is now 30% black, 30% whites with college degrees, 30% whites without college degrees, and 10% everyone else. Given that Clinton (and the Democrats generally) do well with blacks and college graduates, it becomes clear why the Republicans are beginning to worry that after losing Virginia and probably losing North Carolina, Georgia could be next. (V)

Is the Koch Brothers' Network in Decline?

In mid-September, 200 of the Koch brothers' staffers were called into a meeting and told that the brothers were having a lot of trouble with fundraising and the whole project's goal to reshape American politics wasn't going very well. The staffers were shocked. The message was that the number of people they were planning to mobilize on Election Day was cut in half and 2017 looked bleak as well.

Central to the problems is one D.J. Trump. The Kochs abhor him and the way he is upending the Republican Party. He stands for things they hate, like blocking immigration and canceling trade agreements. They clearly realize that the Republican Party that comes out of the likely wreckage on Nov. 9 is not the libertarian party that they want, but a populist party that opposes rich people like them and their goals.

To a large extent, the direction the Republican Party is going is the Kochs own fault. They nurtured the tea party and tried to teach its members about the free market, but the members weren't terribly receptive to those ideas. They have become much more receptive to racism and bigotry as core values, things the Koch brothers don't see as core values at all. Still, the network the Koch brothers have created is far from dead. Charles Koch said that his will leaves most of his $42 billion fortune to the network he helped create, so it can carry on its work indefinitely. (V)

Today in Self-Delusion

A new meme, of sorts, has emerged in the pro-Trump corners of the world, as supporters grasp at straws to persuade themselves that Donald Trump is going to win this thing. It goes something like this:

1. Ronald Reagan trailed Jimmy Carter 47-39 just 10 days before the election of 1980
2. The Donald trails Hillary Clinton by a similar margin right now
3. Reagan won easily
4. Therefore, Trump will win easily

Needless to say, this requires a very selective reading of the data. As RedState.com's Streiff points out, there was indeed a late poll that had Carter up by 8 points. However, it came out amidst a sea of polls that had Reagan up, often by 5 points or more. This being the case, the actual historical lesson goes something like this:

1. Just about everyone thought Reagan was going to win in 1980
2. Reagan did win, easily
3. Just about everyone thinks Clinton is going to win in 2016
4. Therefore...

We will let you fill in the rest for yourself. (Z)

Donald Trump's Star is Fading

Well, one of them is, at least. And it's not so much fading as it is completely destroyed. Thanks to his work on "The Apprentice," Donald Trump has a star on Hollywood's Walk of Fame. Now, it's been desecrated by wealthy liberal activist James Otis, who took a pickaxe to the sidewalk and says he is selling off the damaged slab in order to benefit Trump's sexual assault victims. "I know I can sell it," he says. "I think I can get over $1 million for this star, to be distributed to these women and many others that will be going forward." Otis has already been arrested and charged with felony vandalism. We can only imagine that The Donald would like to see the death penalty imposed. (Z)

Did Hillary Clinton Just Luck Out in Getting a Weak Opponent?

The conventional wisdom is that Hillary Clinton was really, really lucky to draw an incompetent blundering fool as an opponent, otherwise she would have been toast. Fred Hiatt, the editorial page editor of the Washington Post, makes the case that the conventional wisdom is wrong. For example, many people have said that had Sen. Marco Rubio (R-FL) been the Republican nominee, his youth and appeal to Latinos would have wiped her out. Hiatt notes that Rubio collapsed completely when attacked by Gov. Chris Christie (R-NJ). If he couldn't even stand up to Christie, surely Clinton could have made mincemeat of him. His personal finances are a complete disaster, and Clinton would have made it clear that he can't add 1 + 1 and get 2. What about John Kasich (R-OH)? Isn't he a giant killer? On paper, yes, but in reality, even Republicans wouldn't vote for him except in his home state. Why would anyone think that Democrats would vote for him if Republicans wouldn't?

Clinton managed to create her own identity, tacking left to win the primary, yet holding onto the still-popular President Obama. She is an excellent debater and made it clear to Democrats and Republicans alike that she is supremely qualified for the presidency. Her campaign has been focused like a laser and raised boatloads of money. All the Republicans could find to throw at her were her email server and her emails. In the end, they proved to be pretty weak arguments. During the campaign, her popularity rose by 12 points, although it is still under water. Hiatt thinks she could probably have beaten any of the Republicans who ran this year, not just Trump. (V)

New Ad Not Negative

In a season of negative, more negative, and even more negative ads, we finally have a positive one (sort of), albeit for Travis County, TX, commissioner. Worth watching. (V)

Today's Presidential Polls

Iowa and Nevada are very close, but Hillary Clinton is still leading where it counts: Florida, North Carolina, and New Hampshire. Virginia is a done deal now. (V)

State	Clinton	Trump	Johnson	Start	End	Pollster
Alabama	36%	52%	8%	Oct 18	Oct 26	SurveyMonkey
California	54%	28%	5%	Oct 14	Oct 23	Public Policy Inst. of Calif.
Florida	43%	39%	6%	Oct 20	Oct 25	U. of North Florida
Georgia	43%	44%	8%	Oct 20	Oct 26	Quinnipiac
Iowa	44%	44%	4%	Oct 20	Oct 26	Quinnipiac
Idaho	29%	48%	6%	Oct 23	Oct 24	Rasmussen
Massachusetts	57%	25%	4%	Oct 24	Oct 26	Suffolk U.
Michigan	41%	34%	9%	Oct 22	Oct 24	EPIC MRA
Missouri	42%	47%	3%	Oct 24	Oct 26	Mason Dixon
North Carolina	47%	43%	5%	Oct 20	Oct 26	Quinnipiac
New Hampshire	43%	38%	8%	Oct 17	Oct 21	UMass Amherst
New Hampshire	45%	36%	10%	Oct 20	Oct 24	Marist Coll.
Nevada	43%	43%	10%	Oct 20	Oct 24	Marist Coll.
Pennsylvania	46%	39%	6%	Oct 23	Oct 25	Siena Coll.
Texas	42%	45%	7%	Oct 14	Oct 23	U. of Texas
Virginia	50%	38%	4%	Oct 20	Oct 26	Quinnipiac
Washington	53%	39%		Oct 06	Oct 13	YouGov

Today's Senate Polls

Despite daily fluctuations, Nevada, New Hampshire, Missouri, and Pennsylvania are probably going to go down to the wire, and we may not even know the results the evening of Nov. 8. (V)

State	Democrat	D %	Republican	R %	Start	End	Pollster
California	Kamala Harris	42%	Loretta Sanchez (D)	20%	Oct 14	Oct 23	Public Policy Inst. of Calif.
Florida	Patrick Murphy	43%	Marco Rubio*	49%	Oct 20	Oct 25	U. of North Florida
Missouri	Jason Kander	46%	Roy Blunt*	47%	Oct 24	Oct 26	Mason Dixon
New Hampshire	Maggie Hassan	47%	Kelly Ayotte*	48%	Oct 20	Oct 24	Marist Coll.
Nevada	Catherine Cortez-Masto	42%	Joe Heck	49%	Oct 20	Oct 24	Marist Coll.
Pennsylvania	Katie McGinty	47%	Pat Toomey*	44%	Oct 23	Oct 25	Siena Coll.
Washington	Patty Murray*	49%	Chris Vance	35%	Oct 06	Oct 13	YouGov

* Denotes incumbent

Email a link to a friend or share:

---The Votemaster and Zenger