Republicans Are Running Scared

The vote on the ACA Replacement from Speaker Paul Ryan (R-WI) is on Thursday, and the 216 votes needed to pass it may not be there. Various whip counts show it to be very close. One count shows that 21 members of the Freedom Caucus will vote no, which would be enough to sink the bill. Another shows 27 Freedom Caucusers and an additional 20 moderates, which would definitely be enough to sink the bill. To increase the chances of passage, President Donald Trump visited the Hill yesterday to try to intimidate opponents of the bill into voting for it. Specifically, he said: "Give me your vote or you may lose your seat in 2018." Implicit in that threat was a suggestion that any Republican voting against the bill would be primaried in 2018, with Trump tweeting support for the challenger. Trump named Rep. Mark Meadows (R-NC), chairman of the conservative Freedom Caucus, by name when he said: "Mark, I'm gonna come after you."

Trump is taking a big gamble here. If the bill passes, he will get a fair amount of the credit, but if it fails, he is going to look like a paper tiger and that will haunt him during his entire time in the White House. Trump understands that if the bill fails, he will be branded as a "loser," the one thing he can't stand, so he will do anything he can in the next two days to win over conservatives, even if that means making the bill unacceptable to a dozen senators. He'll deal with that problem when it arises. (V)

McConnell Says Senate Will Take Up the Healthcare Bill Next Week

Assuming the Ryan healthcare bill passes the House on Thursday—and that is going to be a cliffhanger—the Senate will take it up next week, according to Senate Majority Leader Mitch McConnell (R-KY). Sen. Tom Cotton (R-AR), Sen. Mike Lee (R-UT), Sen. Rand Paul (R-KY), and Sen. Susan Collins (R-ME) are all on record against the current bill. If the bill is amended in the next two days to make it even harsher, Collins will be even more against it, possibly along with Sen. Lisa Murkowski (R-AK). It seems unlikely that McConnell, who is about as shrewd an operator as they come, would allow a vote unless he is fairly certain the bill will pass. Unless he wants a defeat for strategic reasons. Then Ryan could go back to the Freedom Caucus and say: "Thanks a lot for four more years of ObamaCare." At this point, almost anything is possible. (V)

Gorsuch Sits in the Hot Seat, Doesn't Wilt

Donald Trump's SCOTUS nominee Neil Gorsuch appeared before the Senate on Tuesday for his second day of questioning. You don't get to this place without an ability to handle some withering fire (unless, perhaps, you're Harriet Miers). Not surprisingly, then, Gorsuch bobbed and weaved very deftly, and avoided any serious missteps.

From the Republican perspective, Gorsuch said a number of things that they were undoubtedly happy to hear. Namely:

• He's an originalist: Like the man Gorsuch would replace, Antonin Scalia, Gorsuch says he is an originalist. That is, he regards the Constitution as a "dead" and "unchanging" document, and believes judges' responsibility is to discern the intent of the framers. As the Yale law professor Jack M. Balkin noted in the seminal Living Originalism, this isn't really a clear statement of judicial philosophy as much as it is a way of saying, "I'm going to make conservative rulings and then assert that they are non-political." At least, that was the case with Scalia.
  
  
• He was evasive: Gorsuch refused to comment on many past Supreme Court decisions, no matter how cleverly Democratic questioners phrased their inquiries. In the absence of evidence to the contrary, the presumption is that he withheld those answers because he knew the Democrats would not like what they heard.
  
  
• He appears to be very pro-business: The testiest exchange of the day came when Sen. Al Franken (DFL-MN) asked Gorsuch about his dissent in the "frozen trucker" case. In the case, a trucker abandoned his trailer in sub-zero conditions, fearing he would freeze to death before help arrived. He was fired by his employer, appealed to OSHA, and was reinstated by a panel of judges, over Gorsuch's objection. The nominee insisted that he was merely following the law as he read it, and that, "I can point you to so many [cases] where I've found for a worker in an employment action," though he declined to specify any. Franken was dismissive, telling Gorsuch that the ruling, "makes me question your judgment."
  
  
• He's a grown-up: Regardless of Gorsuch's politics or philosophy, there was no question that he's a serious candidate with a resume apropos for the job to which he aspires. Sen. Lindsey Graham (R-SC) observed that he was "comforted" by Trump's choice, and said, "Quite frankly, I was quite worried about who he'd pick. Maybe somebody on TV."
  
  

There were also some silver linings for the Democrats:

• No litmus test: Gorsuch said that he gave no assurances to the President on how he would rule on any particular issue. The nominee declared that," I would have walked out the door" if Trump had asked such a question, because, "That's not what judges do." This exchange came after a question from Graham, specifically about Roe v. Wade. This exchange does not mean that Gorsuch will uphold Roe, of course, but at very least it's not a done deal. That is about the best that Democrats could hope for, given Trump's campaign promises to appoint a judge that would strike down Roe.
  
  
• Independence: Consistent with the above point, Gorsuch insisted he would be independent, and would not hew to any particular political philosophy. Now, every nominee says that, but at least he put the sentiments on the record, unequivocally.
  
  
• His hero is Byron White: Although Gorsuch has been most commonly compared to Scalia, for obvious reasons, he said that his real role model is the justice he once clerked for, Byron White. If those are the footprints in which Gorsuch follows, Democrats would have to be fairly happy, since White was one of the most centrist justices of the past half century (generally liberal on questions of civil rights and government power, more conservative on fiscal and criminal issues). White did dissent from Roe, however.
  
  
• He says he won't defer to Trump: When asked whether he would be able to hold Donald Trump accountable, should a case involving the President come before the court, Gorsuch was adamant: "No man is above the law."
  
  
• He admits liberals aren't the whole problem: In 2005, Gorsuch wrote a widely-circulated essay in which he argued that liberals are too willing to use the courts to advance their agenda, as opposed to the political process. On Tuesday, he changed course, and said that this is an issue on both sides of the aisle.
  
  
• He's a grown-up: See above.
  
  

Thus far, Senate Democrats have avoided committing to a strategy via-a-vis Gorsuch, likely hoping that he would step in it, and give them an easy excuse to oppose his nomination. That does not seem like it will happen. So, barring the unexpected, they have a choice to make. Option one is to accept Gorsuch as the best they're going to get under the circumstances, and to save their ammunition for the next confirmation, if and when an Anthony Kennedy (80), or a Ruth Bader Ginsburg (84), or some other justice steps down or dies.

The alternative option is to filibuster, and to block Gorsuch for...who knows how long? The Democrats are unlikely to retake the Senate in 2018, and a four-year filibuster would be politically challenging, to say the least. Senate Minority Leader Chuck Schumer (D-NY) vaguely hinted that the Senate should not vote on Gorsuch until the FBI is done investigating Trump, but this is going to be a hard argument to sell to his colleagues. The odds are good that the Democrats filibuster only if their goal is to compel Senate Majority Leader Mitch McConnell (R-KY) to abolish the practice; otherwise, they likely accept that they could do worse than Gorsuch, and allow him to take his seat. (Z)

Most Americans Can't Name Even One Supreme Court Justice

Despite a brewing epic confirmation fight over Supreme Court nominee Neil Gorsuch, Americans are amazingly ignorant of the Supreme Court. A majority can't name even a single sitting justice. Only 43% could name one, and of the justices named, no one in the survey named Stephen Breyer. Even worse, only 28% could name Gorsuch as Donald Trump's nominee to replace the late Antonin Scalia. (V)

Dow Has Worst Day Under Trump

After a 13% rise in value that has become known as the "Trump Bump," the stock market has been trending downward for the last week or so. On Tuesday, it sank badly, with the Dow falling more than 238 points, the S&P 500 losing 1% of its value, and the Nasdaq down 2%. These are the worst declines of the Trump presidency and, indeed, the worst since Election Day.

Analysts were quick to try to make sense of things, with one writing that, "President Trump's legislative agenda is getting mired in a congressional swamp, as starry-eyed optimism runs headlong into bloodshot realism;" another sniffing that, "Trump is trying to be the CEO president. That doesn't work in politics;" while still others took note of Sen. Sherrod Brown's (D-OH) declaration that Dodd-Frank is not likely to be repealed entirely. These theories are just guesses, at the moment, and if the market bounces back today or next week, they will quickly be forgotten.

In fact, if there's a number that should worry Trump, it's not 238, it's 8. As in, last week, the market concluded its 8th consecutive year of growth. Only once has the streak stretched to 10 years (during the "dot com" boom) and it's never gotten to 12 years. So, if the market is going to remain strong throughout his entire first term, Trump is literally counting on something that is historically unprecedented. (Z)

CNN: Ivanka Will Get a White House Office

CNN is reporting that Donald Trump's daughter, Ivanka, will get a security clearance and an office in the West Wing of the White House. She will not be a government employee, but she says she will abide by the rules government employees have to abide by. Whether she will put her assets in a blind trust is another matter. Her husband, Jared Kushner, has been a senior adviser to the President since the beginning of his term. His two adult sons, Eric and Donald, Jr., are running the Trump businesses. That leaves Tiffany Trump, the daughter of Marla Maples, as the only one of Trump's adult children without a job either in the White House or running his businesses. (V)

Manafort May Have Laundered Ukrainian Money

A Ukrainian lawmaker released documents yesterday showing that Donald Trump's former campaign manager, Paul Manafort, laundered payments from the former Ukrainian strongman Viktor Yanukovych, for whom he did political consulting that brought him back to power after he was defeated in the 2004 elections. Yanukovych has close ties to Vladimir Putin and wealthy Russian oligarchs.

One of the documents is an invoice on Manafort's stationery for the sale of 501 computers for $750,000 to a company in Belize. The Ukrainian lawmaker said that Manfort used offshore jurisdictions, such as Belize, to have an explanation for how he came upon $750,000. It is very unlikely that Manafort had 501 computers for sale, and even less likely that he would sell them to a company in Belize if he did have them.

If this story turns out to be true, it could spell trouble for Donald Trump. If Manafort received $750,000 from Yanukovych for political advice, that is not illegal, provided that he reported the $750,000 as taxable income for services rendered. The Belize invoices suggest that he didn't report the taxable income and needed a cover story to explain where the money came from ("You see, your honor, I bought a shiny new MacBook, so I decided to sell all 501 of my old Windows computers"). If the feds charge him with tax evasion (and possibly fraud), he might decide to agree to tell them everything he knows about the Trump-Russia connection in order to avoid prison. Of course, it is possible that he really doesn't know anything about that, since his primary business was with Ukraine, not Russia, and that was 10 years ago. And it is also possible that if Trump sees trouble on the horizon, he might issue Manafort a pardon for evading taxes, although there would be a lot of political fallout from that. Still, keep an eye on the Manafort connection. (V)

Labor Nominee Acosta Let Billionaire Off the Hook in Underage Sex Case

Jeffrey Epstein is a billionaire who used to throw lavish parties for rich men at which girls as young as 13 would be paid to "entertain" the men. Then, he was charged with the sexual abuse of 40 minors. At the time the case was brought 10 years ago, Alexander Acosta, now Donald Trump's nominee for secretary of labor, was U.S. attorney in Miami. His staff wanted to prosecute Epstein for transporting the girls across state lines because they flew on Epstein's private jet. In fact, the staff drew up a formal 53-page indictment. Had Epstein been indicted and convicted, he could have gotten a life sentence, although 10 years would have been more common. However, Acosta intervened and overruled his staff. He made a deal with Epstein in which Epstein would plead guilty to violating a lesser Florida state law and be sentenced to 13 months in a Florida jail. However, during the daytime, Epstein was allowed to go home as long as he came back to spend the night in jail.

At his confirmation hearing, Acosta is expected to be questioned about this. Most likely he will say what he has previously said about the case, namely, that Epstein hired a team of the eight best defense lawyers in the country and that he was no match for them so he let Epstein off the hook with a pretty good deal. That could be the end of it. Or maybe not, because Acosta is not the only one who has ties to Epstein. So too does Donald Trump. In fact, in 2002, the President called Epstein a "terrific guy," and even declared, "It is even said that he likes beautiful women as much as I do, and many of them are on the younger side." Needless to say, the Democrats would be delighted to tie not only a Trump nominee but the President himself to a pedophile. Undoubtedly, they will try to do so with their questions. (V)

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---The Votemaster and Zenger