Trump Faces a Tough Choice With Supreme Court Pick

Republican judges who never met an abortion they liked are a dime a dozen. Nevertheless, Donald Trump is facing a tough choice about his pick to replace Anthony Kennedy, because conservatives are divided about whom he should pick. Four of the top candidates are Judges Brett Kavanaugh, Amy Coney Barrett, Amul Thapar, and Raymond Kethledge. Each has different advantages and disadvantages from a conservative perspective and also from Trump's perspective, which are most certainly not identical.

First Kavanaugh. He's sort of another Samuel Alito, except Kavanaugh is Yale/Yale and Alito is Princeton/Yale. Close enough for government work. Both clerked for high-profile judges and both worked for the Justice Dept., Alito as deputy assistant attorney general, Kavanaugh as senior associate counsel to President George W. Bush. In short, Kavanaugh is another middle-aged white guy, about as establishment as they come. He was confirmed for the D.C. Court of Appeals 57 to 36 after a contentious fight. Sen. Dick Durbin (D-IL) called him the "Forrest Gump of Republican Politics." He has been on the bench for 12 years now and is something of a known quantity. For the most part, conservative legal experts like him, especially for his article in the Minnesota Law Review in which he said that civil and criminal trials against a president could distract a president from his duties. That issue might just come up in a case if he is confirmed. If he is confirmed, it will move the Harvard to Yale balance from 6 to 3 to a more even 5 to 4. Note that 6 +3 = 9 and 5 + 4 also equals 9. (Tip: if you want to serve on the Supreme Court, you should probably get a law degree from either Harvard or Yale.)

Amy Coney Barrett is a dark horse candidate for the Supreme Court. While the conservative legal establishment is not wild about her (she attended neither Harvard nor Yale), she checks a lot of boxes for Donald Trump, including:

• Democrats would have trouble attacking a woman who would balance the Court by gender 5-4
• She is deeply conservative, with a record (albeit a short one) to prove it
• She is a practicing Catholic who belongs to People of Praise, an intensely religious group
• She's only 46
• Barrett is from Indiana, making it awkward for Sen. Joe Donnelly (D-IN) to vote against her
• Her alma maters, Rhodes College in Tennessee and Notre Dame, are not Ivy League schools
• She clerked for the late Justice Antonin Scalia
• She's a mom—with seven children (of whom two are adopted)
• The base would go wild over her
• Liberals would totally freak out if a woman provided the fifth vote to overturn Roe v. Wade

To make it even better for Trump, her confirmation would be a direct slap at Sen. Dianne Feinstein (D-CA), who questioned Barrett when Trump nominated her to the Seventh Circuit on May 8, 2017. During the confirmation hearings, Feinstein asked her if a person with such deep religious faith could uphold the law, even when her faith informed her to rule the other way. If Trump picks Barrett, Feinstein's question will become giant news (on Fox, anyway) and all right-wing media outlets will be yelling that Democrats don't think people of faith can be trusted to obey the law.

She looks like a win-win-win-win situation for Trump: Giving even never-Trump conservatives a reason to love him, rev up the base, get rid of Roe, and expect pro-religion decisions for the next 40 years. New York Times columnist Ross Douthat put it fairly succinctly: If Trump wants to "trigger the libs," Barrett will do it:

He'll choose Kavanaugh if he goes the central-casting/Ivy Leaguer route, and Barrett if he wants to trigger the libs. Edge to Barrett. https://t.co/AV5f1myLt6

— Ross Douthat (@DouthatNYT) July 2, 2018

However, there is a downside to Barrett. She will indeed "trigger the libs" more than, say, another standard issue white guy who went to Yale like Kavanaugh, because she is much more in-your-face than Kavanaugh, who is very establishment. While there will be no way for Democrats to block her, her nomination will outrage Democrats of all stripes and may greatly increase Democratic turnout in November because Democrats want to send a message to Trump. Republicans may feel more complacent after having just dined on a huge piece of red meat (more below).

Fox News seems to be backing a different horse: Amul Thapar, who, like Kavanaugh and Barrett, is also an appellate judge. His appointment would make him the first Indian-American on the Supreme Court and would help Trump with a four-million-strong minority group that is also well educated and rapidly growing. He is also the favorite of Majority Leader Mitch McConnell (R-KY), who knows the 49-year-old from the time he was appointed U.S. attorney in Kentucky. It is also possible that other Asian Americans might like having someone of their ethnicity on the Court, but there is a lot of difference between an Indian and a Korean, so the effect might be small. Working against him is not only his lack of a J.D. from Harvard or Yale, but that his degree is from that hotbed of leftist politics, Berkeley. Heaven knows what kind of liberal virus with a long incubation time he might have picked up there. While it is impolite to talk about it, there is also the indisputable fact that some people in Trump's base are racist and might not be happy with Trump putting a person with brown skin on the Supreme Court, no matter how impeccable his credentials. And for Trump, what the base wants is what he wants.

Also in the running is yet another appellate judge, Raymond Kethledge of Michigan. Also not from Harvard or Yale, he got his J.D. at the University of Michigan. Like Kavanaugh, he clerked for Anthony Kennedy long ago but unlike Kennedy, he also worked for a Republican senator, Spencer Abraham, so he can be counted on to understand politics. Prominent conservative Hugh Hewitt has written an op-ed praising him to the moon. Not only has Kethledge written many conservative opinions, but he is also an avid hunter, which pretty much tells you all you need to know about any cases involving the Second Amendment. Because he lives in Michigan, Sen. Debbie Stabenow (D-MI) might feel pressured to vote for him, but she seems safe enough that she would probably survive a negative vote.

There are a couple of others as well, but the big divide is between a bunch of interchangeable middle-aged white men with impeccable credentials and a deeply religious woman who has been a judge only 8 months but who would please the base and "trigger the libs." Trump is something of a gambler (albeit not a good one, as he owned four casinos at various times, but all went bankrupt), so he could pick one of the guys this time and then send out a tweet telling Justice Ruth Bader Ginsburg to please hurry up and die so he can appoint Coney Barrett to her seat after Coney Barrett has a bit more experience. (V)

Be Careful What You Wish For

Conor Maguire, a longtime Republican pollster, spoke to The Hill this week and expressed his opinion that the GOP should not focus on trying to overturn Roe v. Wade. "I don't think that's a fight we need to have right now. As Republicans, we have so many other things that we're focusing on," he said. "We don't need to go back and pick a fight on something that is just going to rile up so many more people, and really turn out, and get a lot more people on the left angry."

Maguire is undoubtedly correct, and he's even being honest about half the problem: The effect this is going to have on the Democrats. As Slate's William Saletan explains, the basic dynamics here are really quite simple. When abortion rights are secure, there isn't really anything for pro-choice voters to achieve, and they vote based on other issues. At the same time, there theoretically is something for pro-life voters to achieve, and so they tend to become single-issue voters. As soon as abortion rights are threatened, however, the script flips. In particular, pro-choice voters tend to become single-issue voters who focus on protecting abortion rights. This is what happened the last time Roe was threatened, when Anthony Kennedy was nominated and seated in 1988, setting the stage for three straight elections in which the Democrats gained seats in Congress despite already being in the majority.

And in addition to the likelihood that this is going to inflame an already-enraged Democratic base, and potentially lay the groundwork for a November blue wave, there is a second issue that the pollster Maguire certainly knows about, but that he can't say publicly: Roe is the king of all wedge issues, skillfully deployed by Republicans for decades in order to get evangelicals and other social conservatives to the polls. GOP politicians have publicly longed for the opportunity to put one more pro-life justice on the court. Well, now they have their "wish" (which was never genuine for most of the pooh-bahs), and it's a real problem for them. There are three basic scenarios that might play out here:

• Trump appoints a pro-life justice, Roe is struck down: This would give the GOP its "win," and at the same time would hand the Democrats a hammer that they would deploy for decades (or generations). And since pro-choice voters outnumber pro-life voters roughly 2-to-1 these days, the Democratic hammer would be twice as large as the one the Republicans have been wielding.
  
  
• Trump appoints a pro-life justice, Roe is sustained: The likeliest way this would happen is if Chief Justice John Roberts, who is both a conservative and a Catholic, decides that he simply cannot be the fifth vote in a 5-4, politically-charged decision. In this case, Republicans would have gotten their pro-life majority, and still come up short. How can they campaign on the issue after a failure like that? "You've got to elect Republicans until we get six...no, seven...no, eight pro-life justices on the bench!"
  
  
• Trump appoints a pro-choice justice: In this case, Trump—and, by extension, the GOP—would have failed outright on its promise. And, given how the process works, there would be no blaming the deep state, or Hillary Clinton, or the Democrats, or anyone else. This is wholly within the power of the red team to do, or not to do. If the GOP gets its chance, and then doesn't take it, can evangelicals really take it seriously in the future when politicians say, "you must elect me, so we can put a pro-life justice on the Court!"?

In short, no matter what happens, the GOP could lose its most powerful wedge issue for years, or perhaps forever. Meanwhile, Democrats are going to be driven into a fury, at least in the short-term, and perhaps much longer. And given that the inevitable case that will put this to the test is going to take years to make its way to the Supreme Court, it means this dynamic will most certainly be in effect for this year's midterms, and for the 2020 presidential contest, something the blue team is already getting very well prepared for. (Z)

Trump's Economic Policies Are Having Undesirable Side Effects

Donald Trump unilaterally imposed tariffs on imported steel and aluminum in March to support the industries that make them. But as the song goes, the thigh bone is connected to the hip bone. So is it with the economy. Changes in one sector can have effects that reverberate in another. Various industries are starting to notice, and they don't like what they see.

The first matter is retaliation by other countries. China and Mexico are the largest export markets for soybeans and their retaliatory tariffs and threats are already wreaking havoc with the soybean market. Farmers have already seen soybean prices dropping sharply as the main markets are seen to be closing. This is causing grief to many farmers who have taken out loans to pay for seeds, fertilizer, etc. with the expectation of paying them back based on last year's soybean price.

Another problem is that Trump is unaware of how the steel and aluminum markets work. While steel producers benefit from tariffs, companies that use a lot of steel, like car manufacturers and makers of construction equipment, suffer from both higher prices for imported steel and higher prices from domestic steel producers who have raised their prices now that they don't have to fear being undercut by foreign competition. The Aluminum Association says that 97% of the jobs associated with aluminum are in companies that do something with raw aluminum rather than companies that smelt aluminum ore. So the tariffs help 3% of the aluminum sector and hurt 97% of it.

Yet another trouble spot is Trump's order to electricity companies to keep old polluting coal-fired plants in operation. While this is a boon to coal companies and coal-related jobs, it is a direct hit at the oil and gas industry. The electricity companies would like to retire old, inefficient coal plants and replace them with clean, gas-fired plants (something the gas industry would like very much), but Trump is trying to prevent this. Needless to say, while there are happy people in West Virginia and Kentucky as a result, there are even more unhappy people in Texas and Louisiana. And remember, Republicans hate it when the government picks winners and losers, which is precisely what Trump is doing.

One final example: EPA Administrator Scott Pruitt has loosened air pollution rules. This has angered the aluminum companies because one way for cars to get better mileage is to make them lighter by using less steel and more aluminum. So tighter pollution rules helps the aluminum industry. Who knew? In addition, the car companies don't want looser pollution rules. In fact, GM CEO Mary Barra recently argued with Trump that getting rid of Obama-era rules will hurt GM and the car industry generally. The reason is that some states, certainly including California, by far the biggest market for cars, will enact rules that are tougher than the federal rules, meaning that the car companies will have to make two or more kinds of cars, depending on which market they are aimed at. This is an enormous logistical issue for the companies, which really don't want to have separate manufacturing plants for "California cars" and "non-California cars." They would actually prefer a single standard nationwide, even if it is a tough one.

But Trump doesn't see any of this. He simply imposes a tariff on steel and aluminum without having any idea of the consequences, orders pollution rules relaxed, without seeing their industrial and economic impact (let alone the health impact), threatens to blow up NAFTA, without realizing how this will affect supply chains in many industries, and so on. Other presidents have carefully avoided doing things that could adversely affect the entire economy by first having experts study proposed rule changes, analyze the effects, and then write reports detailing the consequences of the proposed changes. But with a president who hates experts, doesn't like studies, and doesn't read reports, the consequences of what he does are often counterproductive. (V)

Cohen Strikes Trump Affiliation from Twitter, LinkedIn Bios

On Wednesday, Michael Cohen was busy updating his social media profiles. His Twitter bio used to be "Personal attorney to President Donald J. Trump," but now that field is blank. And his LinkedIn profile has been changed to say that his tenure with Trump ended in June 2018.

Under most circumstances, this would be a triviality. But it comes weeks after Cohen hired attorney Guy Petrillo, whose specialties include negotiating plea deals, and it comes just days after Cohen appeared on ABC's "This Week," and made clear he was willing to throw Donald Trump under the bus in order to save himself. So, the onetime "fixer" certainly appears to be building toward something.

If Cohen does flip—and the odds of that are very good at this point—then it will be big trouble for Donald Trump. New York magazine has a nice, clear breakdown of the exact reasons why:

• Cohen apparently made illegal payments on Trump's behalf (besides Stormy Daniels)
• Cohen kept a lot of evidence (which the Feds now have)
• Cohen can't be pardoned (since most of his crimes are state-level)
• Cohen dealt with Russia during the campaign (so if there was collusion, he knows it)
• Cohen may have collected bribes after Trump's election (possibly including some from Russians)

Depending on what happens in the next few weeks, Wednesday's Twitter bio change by Cohen could, ironically enough, prove to be the most damaging thing ever to happen to Trump on the social media platform.

However, it is far from a sure thing that Cohen will start imitating a canary. He's probably not worried about Trump, who can bluff a lot, but if Petrillo can get Cohen a good deal from the U.S. attorney's office, there is little Trump can do about it. Cohen's real problem is that he is up to his ears in Russians and Ukrainians and not all of them are sweet gentle people. He is married to a Ukrainian (as is his brother) and he has business deals with his father-in-law, who is in the taxi business. The taxi business is a great way to launder money since a lot of cash flows through it. When someone deposits a suitcase full of it at a bank and the bank asks: "Where did you get it?" being able to say you run a cash-heavy business is a huge plus. If Cohen were to go for a plea bargain, the feds are likely to want him to spill the beans on his Russian and Ukranian contacts, and his friends and contacts might not be so happy about that. He has to consider this before making a deal. (Z & V)

Pruitt Is Entering Archvillain Territory

There has been nobody quite like Scott Pruitt in the last century, and perhaps nobody in the history of the republic, given the veritable smorgasbord of scandals he's managed to get himself involved in after just 18 months in office. At this point, the only real comparison seems to be fictional politicians, like Frank Underwood. Or maybe Sheev Palpatine.

In any case, we already knew that he's a pretty bad boss, one who abuses underlings, compels them to do personal errands that are not their job, and (allegedly) retaliates against those who push back against unethical or illegal behavior. Now it turns out that he's a pretty lousy colleague, as well. Specifically, news broke this week that as Attorney General Jeff Sessions became more and more beleaguered, Pruitt stabbed him in the back, and suggested to Donald Trump that he would be delighted to replace Sessions as AG. Since the Administrator has demonstrated, over and over, that he will do whatever the President says, Trump reportedly gave the offer serious consideration.

Now, however, that move is basically an impossibility. Given how toxic Pruitt has become, it is inconceivable he could be confirmed as AG. Since he's already been approved as head of a different department, he could theoretically take over temporarily (up to 180 days), fire Robert Mueller, and then exit stage right, but the Administrator is not looking for a temporary posting, and Trump is reportedly cooling on him anyhow. The President is clearly not bothered by the myriad bad behaviors Pruitt has been accused of, but he is leery of Democratic commercials during the midterms that use the Administrator as a weapon. Something along the lines of "What happened to draining the swamp?" So, not only is Pruitt not going to move over to the Justice Dept. anytime soon, he may also be out of his job at the EPA sooner rather than later. (Z)

Sex Scandal May Block Jordan from Becoming Speaker

It is no secret that the House Freedom Caucus is good at shooting things down, but positive accomplishments are scarce on the ground. To change that, Rep. Jim Jordan (R-OH), cofounder of the caucus, is thinking of challenging Rep. Kevin McCarthy (R-CA) for speaker in January, assuming the GOP holds its majority. However, allegations have come out that when Jordan was the wrestling coach at Ohio State University, the team doctor, Dr. Richard Strauss, sexually molested some of the wrestlers and it was impossible that Jordan didn't know about it. However, the credibility of the people making the accusations is not pristine. Dunyasha Yetts said he personally complained to Jordan many times about the doctor's behavior. On the other hand, Yetts served 18 months in prison for bilking investors out of $2 million. Another accuser, Mike DiSabato, has a long history of litigation.

Let's see, speaker, wrestling, sexual molestation, haven't we heard that story before? Oh, yes. Former Speaker Dennis Hastert used to dabble in sexual molestation as well, but he got pinned to the mat not for the molestation, but for a financial crime committed while trying to pay hush money to one of his victims. So, it is possible that Jordan's political enemies got a couple of former wrestlers to make up a story to take down Jordan. Thus far, Jordan hasn't commented, but given that Hastert's fall is fairly recent and the fact that there is a lot of touchy-feely stuff in wrestling that is absent in say, tennis or curling, the story could do damage to Jordan's chances. (V)

Half the Country Thinks Trump is Racist

And the other half is sure. Ok, not really, but the punchline was too good to pass up. Anyhow, the headline is correct—the newest poll from Quinnipiac is out, and 49% of respondents say that they think Donald Trump is a racist, while 47% think that he is not. This is a remarkable result, unprecedented in U.S. history. There may have been presidents in the past who were less racially enlightened than Trump—Andrew Jackson, Andrew Johnson, and Woodrow Wilson, for example—but they were a product of eras that were also less racially enlightened than Americans are today. Although we don't have polling data, of course, it is safe to say that there has never been a time when this much of the populace was so out of step with their president on this particular issue.

Now, it is possible that those 49% just hate Trump, and would have said "yes" to any question—Is Trump a racist? Is he a child molester? Is he a secret operative from the Klingon empire sent to pave the way for a takeover? But this is not likely. There have been some very unpopular presidents in recent memory—George W. Bush leaps to mind—and they did not have half the population reach the conclusion that they were racists.

Further, there is the unpleasant truth that Trump—despite his protestations otherwise—actually is a racist. The "Mexican rapist" speech in which he announced his candidacy, the "shithole" comment, the insistence on comparing brown-skinned human being to animals, the tolerance for white supremacists (including some he hired to work in the White House), the vitriolic anti-Muslim rhetoric, the insistence that Barack Obama was not born in the United States—any one of these things would, by themselves, be enough to end the career of nearly any other high-profile American. Taken as a group, they lead to an unavoidable conclusion. And it is not like this was a newly-discovered tendency when Trump took up residence at 1600 Pennsylvania Avenue. He was raised by an overtly-racist father, and spent much of his business career discriminating against non-white tenants, slurring Native Americans, calling for black men accused of murder to be executed, and the like.

Indeed, the more interesting thing about the poll is the 47% of people who believe Trump is not a racist. That conclusion seems dubious given all of the evidence outlined above. Perhaps they really believe that all of the information above is "fake news," or that "racist" means cross-burning Klansman, and anything short of that is "not racist." In any event, this is another unhappy indicator for the President and his party. Racism is one of the handful of issues that really gets people's blood boiling, and while there are some people motivated by the desire to keep power in racist hands, there are far more who are motivated by the desire to wrest it out of those hands. That particularly includes younger voters and minority voters—two groups that generally deliver below-average turnout in midterm elections. Maybe not this year, though. (Z)

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---The Votemaster and Zenger