Jul. 10



New Senate: DEM 49             GOP 51

New polls:  
Dem pickups: (None)
GOP pickups: (None)

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It's Kavanaugh

On Monday at around 9:00 p.m. EDT, Donald Trump strode up to a podium in the White House and commenced his latest performance. After ten or so minutes of dramatics, reminiscent of the final act of an episode of "The Apprentice," Trump finally told Judge Brett Kavanaugh: "You're hired." Ok, he didn't use those exact words, but the vibe was the same. And thus America learned the identity of Supreme Court Justice Anthony Kennedy's likely replacement.

Why Kavanaugh? Only Team Trump knows for sure, but two considerations were likely paramount. The first is that the President knows that, sooner or later, there is a very good chance that the Court will be asked to rule on some point related to the many lawsuits and investigations in which Trump finds himself enmeshed. Kavanaugh is very clearly on the record on this point, arguing that the Constitution permits impeachment as a remedy against presidential misdeeds, and anything else should wait until the president is no longer in office. In other words, the new justice would appear to be something of an insurance policy or a "get out of jail free" card for Trump. It's possible that Kavanaugh might recuse himself in such a case, but legal experts agree it is unlikely.

The second consideration that presumably argued for Kavanaugh was tactics. For at least a week, anyone who has been following this process has heard that Amy Coney Barrett was the most right-wing candidate (which would please the base) and that Raymond Kethledge was the most politically palatable candidate (which would please the GOP pooh-bahs and reduce the risk of an embarrassing rejection). Kavanaugh is somewhere in between the two; a little less easy to confirm than Kethledge, but a little less fringy than Barrett.

With that said, the base should be pretty happy with Trump's pick. First of all, he is—characteristically for Trump—a white, male, graduate of Yale who was brought up Catholic. In other words, he's demographically a Neil Gorsuch clone. Given that Trump's base is heavy on white men who fear they are being displaced, that should go over well. Further, Kavanaugh may be more moderate than Barrett, but not by a lot. Based on his past jurisprudence, he would be the second most conservative justice on the Court (with only Clarence Thomas to his right), and occupying about the same place on the spectrum as Antonin Scalia. At the same time, the pooh-bahs can't be too unhappy here, either, since Kavanaugh has had close ties to the GOP establishment for decades.

During Monday's announcement/performance, Trump presented the highlights of his candidate's resume: a brilliant academic record, a long career in public service, church membership, charitable work, and so forth. Then, Kavanaugh offered a few remarks. He is actually a pretty poor public speaker (surprising for someone with so much experience as a judge and lecturer), though he clearly has a good sense of humor, and comes off as a decent fellow. That said, the kind of person he is matters hardly at all. His fate will be decided by two things: (1) His track record, and (2) Partisan machinations beyond his control.

The battle lines are already being drawn, of course. Quite a few Democratic senators (Chuck Schumer, NY; Bob Casey, PA; Richard Blumenthal, CT, etc.) issued statements while Monday's event was still underway announcing their "no" votes. And quite a few Republicans (Lindsey Graham, SC; Mike Lee, UT; John Cornyn, TX; Tom Cotton, AR; etc.) have already said they are "yes" votes. In other words, everything Kavanaugh says and does during the confirmation process is really for an audience of about 12 people. On the Democratic side, there are half a dozen red-state senators who might be persuaded to abandon their caucus and vote for confirmation. Joe Manchin (WV), Joe Donnelly (IN), and Heidi Heitkamp (ND) are the most likely to defect, as they face tough re-election battles this year in which they will need some GOP votes. Beyond that trio, Claire McCaskill (MO), Jon Tester (MT), and Doug Jones (AL) are not sure things for the Democrats.

On the red side of the aisle, all eyes will be on Sens. Lisa Murkowski (AK) and Susan Collins (ME), who are seen as the two most likely Republicans to vote "no." That's probably correct, but there are several other GOP senators that Team Trump should be at least a little worried about. Rand Paul (KY) is a maverick and a not-so-secret libertarian who is not going to like Kavanaugh's expansive view of executive power. Dean Heller (NV) is facing a tough re-election campaign in a blue state with a lot of union workers and immigrants, and may not want to explain his support for a judge who has taken anti-labor and anti-immigrant positions in his rulings. Jeff Flake (AZ) and Bob Corker (TN) might enjoy poking Trump in the eye, particularly if something problematic in Kavanaugh's record comes to light. Shelley Moore Capito (WV) may have concerns about the Judge's views on reproductive rights and/or healthcare. And John McCain (AZ) is not likely to show up in Washington to cast his vote, but if he does, he's not a surefire "yes," either.

Needless to say, people are trying to read the tea leaves to see if they can discern anything about the intentions of the dozen or so Senators who might vote against their party. The red-state Democrats, Collins, and Murkowski all declined invitations to be in the audience for Monday's unveiling, which may mean something (but probably doesn't). Publicly, the two women are taking a non-committal "wait and see" approach, as would be expected.

To borrow Donald Rumsfeld's line, there are many known knowns, known unknowns, and unknown unknowns about Kavanaugh. However, at the moment, these would appear to be the four biggest threats to his confirmation, ranked from least threatening to most:

• Executive Power: Although Kavanaugh does not like the bureaucracy (the EPA and the CFPB, in particular), believing these agencies have too much power, he has taken an expansive view of executive power. Democrats, in general, are not going to be thrilled by the Judge's belief that a president—while in office—is dangerously close to being above the law. Some Republicans might be given pause, as well. Particularly, as noted, Rand Paul.
  
  
• Roe v. Wade: On one hand, Kavanaugh has written that Roe v. Wade and Planned Parenthood v. Casey are settled law. On the other hand, he's tried to chip away at abortion rights a bit, arguing (in dissents) that: (1) Employers cannot be forced to pay for contraception under Obamacare and (2) The federal government should not have permitted an undocumented immigrant teen to have an abortion. The Judge is also a devout Catholic (who, unlike Gorsuch, is still a member of the Church). Add it all up, and it's unlikely he'll participate in a full-frontal assault on Roe, but he'll probably be happy to whittle away at the corners. That said, since Kavanaugh is not an outspoken opponent of abortion, and since Collins and Murkowski reportedly don't plan to probe him on the issue, this subject is not likely to derail his confirmation.
  
  
• Resumé: Sen. Dick Durbin (D-IL) once called Kavanaugh the "Forrest Gump of Republican politics." This was not meant so much as an attack on the Judge's mental faculties (though Durbin is certainly not a fan), as it was an observation that Kavanaugh has been in the thick of just about every major political controversy of the last quarter-century. For example, he was the attorney who (unsuccessfully) tried to stop Elián González from being deported back to Cuba. He was a part of Kenneth Starr's team as they investigated Bill Clinton. He was on George W. Bush's legal team in Bush v. Gore. He worked several years for Bush, and then (after a very difficult confirmation battle) was appointed to the U.S. Court of Appeals for the District of Columbia Circuit in 2006, where he's been cranking out opinions for 12 years. The point is that he has a long, long track record—one too long to fully vet in the two weeks since Anthony Kennedy resigned. Any other administration would have spent the last 18 months vetting SCOTUS candidates, just in case, but the Trump administration is not any other administration, and is unlikely to have that kind of foresight. Starting tomorrow, reporters and Democratic operatives are going to be combing through every word Kavanaugh has ever produced, and who knows what they might come up with.
  
  
• Healthcare: This, in our view, is Kavanaugh's real Achilles Heel. One of the things conservatives dislike most about him is that he wrote a decision in 2011 that Obamacare's health insurance mandate is a tax, and is therefore legal. This, in turn, influenced Chief Justice John Roberts in his vote to uphold Obamacare. However, Kavanaugh has also opposed birth control mandates (as noted above), and has expressed the view that it is essentially the sitting president's prerogative to kill programs like this, should he choose to do so. So, it is not unreasonable to view Kavanaugh as being basically anti-Obamacare. This, in turn, could give red-state Democrats cover to vote against him (particularly Joe Manchin, whose home state has seen the number of uninsured drop 62% since the ACA was passed). It could also rub some of the Republicans who kinda like Obamacare (Collins, McCain?) the wrong way. There's even a longshot chance that one of the hard-right Senators (Ron Johnson, WI, perhaps) could vote "no" in anger over that 2011 brief. The GOP pooh-bahs appear to agree that healthcare is where Kavanaugh is most vulnerable, since the person tasked with managing the nomination is former GOP senator Jon Kyl, who now earns a living as a pharmaceutical lobbyist.

In any case, the games begin today. The odds remain very good that Kavanaugh is confirmed, but even if the blue team loses that battle, his record—particularly the healthcare stuff—is going to give them plenty of ammunition to use to try to win the war in November. (Z)

Trump's Trip Hasn't Started Yet, and It's Already Going Badly

Following his dramatic and triumphant announcement of his SCOTUS pick yesterday, Donald Trump is scheduled to depart today for a lengthy European trip. It's already gotten off on the wrong foot. To start, after what happened at the G7, he knows he's going to get something less than a warm welcome at the meeting of NATO allies. So, he took to Twitter on Monday to fire off a few preemptive shots:

The United States is spending far more on NATO than any other Country. This is not fair, nor is it acceptable. While these countries have been increasing their contributions since I took office, they must do much more. Germany is at 1%, the U.S. is at 4%, and NATO benefits.......

— Donald J. Trump (@realDonaldTrump) July 9, 2018

...Europe far more than it does the U.S. By some accounts, the U.S. is paying for 90% of NATO, with many countries nowhere close to their 2% commitment. On top of this the European Union has a Trade Surplus of $151 Million with the U.S., with big Trade Barriers on U.S. goods. NO!

— Donald J. Trump (@realDonaldTrump) July 9, 2018

Trump feels strongly enough about this point (or, at least, he thinks his base does) that he reiterated almost exactly the same sentiment while he was preparing for departure on Tuesday morning:

Getting ready to leave for Europe. First meeting - NATO. The U.S. is spending many times more than any other country in order to protect them. Not fair to the U.S. taxpayer. On top of that we lose $151 Billion on Trade with the European Union. Charge us big Tariffs (& Barriers)!

— Donald J. Trump (@realDonaldTrump) July 10, 2018

This is not going to improve the reception he receives from the other NATO leaders, of course.

Meanwhile, when Trump gets to the UK later in the week, the protests are going to be massive. In an effort to protect his feelings, apparently, the British government is doing what it can to whisk him around and avoid exposing him to protesters too much. For example, in a break with precedent, he will not visit Downing Street (the prime minister's residence). In fact, Trump will spend as little time in London (aka protest central) as is possible. That said, he's not going to be able to avoid the masses entirely, nor is he going to be able to avoid noticing how many prominent Britons declined invitations to the fancy state dinner being held in his honor. Keep your eye on Twitter. (Z)

UK Government in Disarray

As noted, Donald Trump is scheduled to meet with UK Prime Minister Theresa May later this week—assuming she makes it that long. The Brexit, which nearly wrecked her party at the last election, has been going poorly. On Monday, things got worse, as populist Foreign Secretary Boris Johnson (a big Brexit fan) and David Davis (the minister in charge of overseeing the Brexit) both resigned. They opposed May's plans for a "soft" Brexit, in which the UK would cut only some ties to the EU, but not all of them.

What happens next is anyone's guess. There is talk that May will face a no-confidence vote from her fellow Tories, perhaps even before Trump arrives in town on Thursday. It's also within the realm of possibility that Trump's visit, depending on how it goes, could be the final nail in May's coffin. On the other hand, the Tory bench is pretty shallow, and it's not clear what non-May candidate the Conservative Party might coalesce around. Johnson was once a rising star, but he has faded in the last year or so. Whatever happens, the Prime Minister has a big week ahead of her. (Z)

Trump Responds to North Korea

This weekend, U.S. Secretary of State Mike Pompeo and the North Korean foreign ministry got involved in a war of words over exactly how much progress was being made in the negotiations between the two nations. Pompeo said things were going well, the North Koreans said not so much.

Donald Trump weighed in on the matter on Monday, and insisted (without much evidence) that all is well:

I have confidence that Kim Jong Un will honor the contract we signed &, even more importantly, our handshake. We agreed to the denuclearization of North Korea. China, on the other hand, may be exerting negative pressure on a deal because of our posture on Chinese Trade-Hope Not!

— Donald J. Trump (@realDonaldTrump) July 9, 2018

It is interesting that Trump suspects the Chinese just might be involved here. That is like suspecting that Iran just might be trying to undermine Israel, or suspecting that Russia and Ukraine might not like each other. Of course the Chinese are pulling the strings; that's what they've been doing in North Korea for 70 years.

Trump either will not, or cannot, understand that international relations are very complicated things, and that things like trade, and politics, and military aid, and the like are intimately interconnected. While it appears that it's finally dawning on him that the Chinese just might use North Korea as part of their approach to the trade war, he has yet to evince any awareness that the Xi administration might also be clever enough to make sure their tariffs target his base (and, by extension, him). The non-partisan, and well-respected Brookings Institution issued an analysis of the situation on Monday, and found that 2/3 of the workers likely to be affected by Chinese tariffs live in red states. If Trump refuses to grasp that, and sticks with his tariff policy, he will jeopardize not only his North Korea policy, but also the GOP's chances in November of this year and of 2020. (Z)

Federal Judge Won't Change Rules about Immigrant Children

Despite the PR disaster that ensued from its policy of separating children from parents at the border, the Trump administration still badly wants to use kids as leverage as part of their strategy for dealing with undocumented immigration. To that end, the Justice Dept. went before federal judge Dolly Gee to ask her to change the terms of Flores v. Reno, the 1993 decision that limits where and for how long (20 days) children may be detained. Given that Gee is both an Obama appointee and the daughter of immigrants, not to mention that Flores v. Reno has withstood previous challenges, the administration couldn't have felt too good about their chances. And, to nobody's surprise, Gee told them to pound sand.

Ok, she was a bit more professional than that, but her ruling was unambiguous, declaring that the Justice Dept.'s claims were "wholly without merit" and that, "absolutely nothing prevents (the Trump administration) from reconsidering their current blanket policy of family detention." In case the Judge's views were not clear enough, she also wrote that, "It is apparent that (the Trump administration's request) is a cynical attempt ... to shift responsibility to the Judiciary for over 20 years of Congressional inaction and ill-considered Executive action that have led to the current stalemate."

So, that's immigrants 1, Trump administration 0. And things do not figure to get better in the short-term, as today Team Trump is going to miss the deadline a federal judge set for all children under the age of five to be reunited with their families. We shall see how that judge (Dana Sabraw) responds when the administration comes up short. (Z)

Trump Gets Sued Again

Donald Trump got sued a lot when he was a private citizen. All presidents, at least in the modern era, are lawsuit magnets. Taken together, it's not a surprise that the Donald is now the defendant in a long list of lawsuits over his personal behavior (Stormy Daniels, etc.), his professional behavior (Trump U., etc.), and his political behavior (emoluments, etc.). On Monday, the list got one entry longer, as Trump's former driver sued him for thousands of hours in (allegedly) unpaid overtime.

Among all the lawsuits that the President faces, this one is pretty minor in terms of the threat to Trump. However, it could be pretty bad PR for him, for two reasons. First, because it's going to serve as a concrete reminder of his tendency for stiffing vendors and employees. Second, because the lawyer who is handling the case, Larry Hutcher, apparently has Michael Avenatti-like ability to make waves and to push Trump's buttons. For example, the filing refers to the President as a "purported" billionaire. So, this one could get interesting. (Z)

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