Nov. 15

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New Senate: DEM 47     Ties 2     GOP 51

New polls:  
Dem pickups: AZ NV
GOP pickups: IN MO ND

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Updates on House Races

Votes are still being counted in a batch of House races in which one candidate has a razor-thin lead. Here are the recent developments. In Orange County's CA-45 district, Rep. Mimi Walters (R-CA) had a 6,000-vote lead on election night. Now her opponent, Katie Porter (D), has taken a 261-vote lead. Porter is a protégé of Sen. Elizabeth Warren (D-MA). Meanwhile, in the nearby CA-39, Young Kim's (R) lead over Gil Cisneros (D) is down to just 122 votes. For decades, Orange County was the beating heart of the California Republican Party, but if Porter and/or Cisneros pull this off, those days will definitely be behind us.

In UT-04, Rep. Mia Love (R-UT), who has no love for Donald Trump, is half a point behind Salt Lake County Mayor Ben McAdams, but there are still quite a few votes to count. If Love loses, there will be no black Republican women in the House.

In TX-23, an enormous district running for hundreds of miles along the Mexican border, the race between Rep. Will Hurd (R-TX) and Gina Ortiz Jones is close, with Hurd a few hundred votes ahead. The case is already in court, with Jones filing a motion to extend the time allowed for county officials to count the votes. The judge denied the motion, stating that the deadline is set by state law. Ortiz Jones probably won't appeal since state law gives her the right to call for a recount.

Now on to the East Coast. In GA-07, Rep. Rob Woodall (R-GA) leads Democrat Carolyn Bourdeaux by fewer than 500 votes. The district is in the Atlanta suburbs of Gwinnett and Forsyth Counties. It has been reliably Republican for years.

In NJ-03, which covers Burlington and Ocean Counties in the middle of New Jersey, former Obama official Andy Kim (D) has declared victory over Rep. Tom MacArthur (R-NJ) but MacArthur has refused to concede. About 9,000 ballots have yet to be counted, many of them provisional.

Further up the coast in NY-22, Democrat Anthony Brindisi leads Rep. Claudia Tenney (R-NY) by about 1,300 votes. Tenney refuses to concede and has gone to court. A state judge has ordered the absentee ballots to be impounded pending a hearing.

In NY-27, Rep. Chris Collins (R-NY) has a lead of about 3,000 votes over Democrat Nate McMurray. He also has something McMurray doesn't have: An indictment for insider trading. However, as Yogi Berra once pointed out, it ain't over 'til it's over. The absentee ballots there are still being counted.

Finally, in the far north of ME-02, we have a different twist. Rep. Bruce Poliquin (R-ME) holds a 1,900-vote lead over Democrat Jared Golden. However, Maine votes differently, as we all know (Donald Trump won one of its electoral votes in 2016, despite losing the state). This time around the issue is Maine's new ranked-choice voting. Two independents, William Hoar and Tiffany Bond, also competed. They got 6,933 and 16,500 votes, respectively. Under the ranked-choice voting system, Hoar's votes will now be redistributed to his supporters' second choices. If no one has 50%, then Bond's votes will be similarly redistributed to the highest candidate still in the running. Poliquin has gone to court to see if the judge will throw out the ranked-choice voting system and declare him the winner. (V)

There Must Be Something in the Water

Let us imagine that a state had an election so close that it needed to go to a recount, despite over 8 million ballots having been cast. And let us further imagine that we told you that during the recount, the machines handling the ballots in one county overheated and broke down, forcing election officials to re-count 174,000 ballots. Well, to re-count them once they can find someone to fix the machines, that is. Anyhow, if you had all these details, and then we asked you to guess what state it was, there is a 100% chance you would pick Florida, right?

This is, of course, exactly what happened. The county in question is Palm Beach. That would be the same Palm Beach of butterfly ballots fame. In fact, the machines that broke down Wednesday were purchased in response to the fiasco during the election of 2000. Of course, the mathematically-inclined among you will notice that 2000 was 18 years ago, and so machines that were shiny and new at a time when people were saying, "What the heck is a google?" are now old and decrepit. The county has actually set aside $11 million for new equipment, but it's currently sitting in a bank account because nobody could figure out what to buy. So, they just stuck with a bunch of machines made by a company that has been out of business for 8 years.

Supervisor Susan Bucher is not at all certain when the matter will be rectified, telling reporters that "we don't have a lot of assurances." The one thing she is certain about is that Palm Beach County will not meet the reporting deadline required by law, which is this afternoon. Exactly how this will play out is anyone's guess, but since Palm Beach is very left-leaning (except when Pat Buchanan is on the ballot), it is likely that Rick Scott (R) will say "if the returns are not in by the deadline, then too bad" and Sen. Bill Nelson (D) will say "every vote must be counted."

It would be very interesting, indeed, if a judge was persuaded that the whole thing has been such a mess that the results are not valid, and that a new election must be held for the governorship, the Senate, and the agriculture commissioner (which also remains up in the air). It's not likely, but it's not impossible, either. And since felons were unambiguously given the right to vote again, that would mean a sizable number of folks who break Democratic would potentially be on the voter rolls this time around. Which Scott knows, and would undoubtedly challenge with a lawsuit. In short, a messy situation is not likely to get un-messified anytime too soon. (Z)

Trump Intervenes in House Leadership Fight

The founder of the House Freedom Caucus, Rep. Jim Jordan (R-OH), has challenged the GOP's establishment candidate for House minority leader, Rep. Kevin McCarthy (R-CA). Generally speaking, when a party is in the minority, the last thing it needs is a bitter ideological fight over direction and personnel. Donald Trump, who is not exactly Joe Cannon, decided to intervene in the fight and try to help his man McCarthy. One rumor that is floating around is that Trump proposed that Jordan be given the position of ranking member of the Judiciary Committee in return for dropping out of the race for minority leader. Just coincidentally, the Judiciary Committee, which will be chaired by Rep. Jerrold Nadler (D-NY), the seventh-most liberal member of the House, is where impeachments start, and Jordan is known to be a ferocious fighter.

It sounds like a good deal, but there is one small fly in the ointment: The minority leader does not have the authority to appoint ranking members. That is the job of the Republican Steering Committee, none of whose members like Jordan, and none of whose members like taking orders from the executive branch.

The election was held by the Republican caucus yesterday and McCarthy got 159 votes to Jordan's 43. So far, there is no indication that the Great Dealmaker is going to get his way concerning Jordan. (V)

Cornyn Steps Down from Whip Role

Sen. John Cornyn (R-TX) has been forced to give up his role as the #2 Senate Republican due to caucus rules on term limits. He is widely seen as the new Republican leader in the Senate when the current one, Sen. Mitch McConnell (R-KY), finally steps down. As a consolation prize, he has been made a counselor, along with Sens. Rob Portman (OH), Shelley Moore Capito (WV), Deb Fischer (NE), and Roger Wicker (MS).

Sen. John Thune (R-SD) is the new #2 Senate Republican. He may have some ideas different from Cornyn about who should succeed McConnell some day. He is a bit of a folk hero among Republicans for running against then-Democratic leader Tom Daschle and beating him in the 2004 midterm election. Previously, neither party attempted to defeat the other party's leader as part of a gentlemen's agreement to keep things civil.

Losing his leadership role might not be a bad thing for Cornyn, since he might also be in some danger of losing his job altogether. Rep. Beto O'Rourke (D-TX) came within 3 points of defeating Sen. Ted Cruz (R-TX) last week and if O'Rourke decides to run against Cornyn in 2020, a presidential year in which many more Democrats turn out than in midterms, Cornyn could have a real fight on his hands, and might be best spending all of his time working on getting re-elected, as opposed to whipping his colleagues. (V)

House Democrats Are Writing Their First Bill

While some Democrats would like the new House's first action to be the impeachment of Donald Trump, that is not going to happen. Instead, it will be a vote on an omnibus bill labeled H.R. 1. The exact legislative language is not available yet, but the bill is designed to accomplish the following:

The bill is still in flux, but is likely to contain provisions to strengthen democracy. It is very likely to pass the House. It has exactly zero chance of passing the Senate. In fact it has close to zero chance of being brought up for a vote because Senate Majority Leader Mitch McConnell (R-KY) doesn't want to force his caucus to vote on it. And if an angel descended from heaven onto the Senate floor armed with an Uzi and instructed the Senate to vote for it and it passed, Donald Trump would veto it.

So what's the point? Everything in the bill is very popular with the voters. Once the bill passed the House, Democrats would spend the next 2 years saying: "If you give us the keys to the kingdom, we will pass this bill into law in 2021." That will show that Democrats want to accomplish things, not just complain about Trump. The bill might even be popular with Trump voters. (V)

Outgoing Republican Legislatures Could Thwart Incoming Democratic Governors

In Nov. 2016, now-governor Roy Cooper (D-NC) beat incumbent Pat McCrory (R). The Republican-controlled state legislature didn't like this one bit and called a special legislature session after the election to solve the problem. In the lame-duck session, it passed a series of laws limiting the governor's power by instituting a new requirement that most of his appointments be confirmed by the state senate. It also reduced the number of state government employees he could hire and fire by over 1,000, forcing him to live with Republican holdovers in many positions. Cooper sued, but the cases are all tied up in appeals 2 years later.

Could this be a blueprint for what happens in Michigan, Wisconsin, and Kansas, all states in which Republicans control the legislature and in which a Democratic governor will replace a Republican one in January? The legislature, with approval of the outgoing Republican governor could pass all kinds of laws restricting what the incoming governor can do. While winning is best, blocking the other team to create a deadlock is second best (see: Garland, Merrick).

The grand prize would be passing a law cutting the governor out of the loop on redistricting after a new census. For example, a new law could create an "independent" commission to draw the new map, with the state senate appointing one-third of the members, the state house appointing one-third of the members, and the governor appointing one-third of the members. The courts would almost certainly approve that, especially after the Supreme Court blessed independent commissions in Arizona State Legislature v. Arizona Independent Redistricting Commission. The grand prize is not available in Michigan because the voters just took redistricting away from the legislature by passing Proposal 2, but it is in the other states. But even if the legislatures don't go after redistricting, the North Carolina example shows that a lot of mischief is possible. (V)

Fox News Backs CNN

Huh? We checked that headline once and then twice and then a third time. It's true: Fox News is going to file an amicus brief in CNN's lawsuit to get Jim Acosta's White House credentials back. Normally, Fox News supports everything that Donald Trump does, but not this time. While Fox does not usually engage in long-term strategic moves, the leadership probably realizes that if Trump wins this one, a future Democratic president could revoke the credentials of Fox's White House correspondent on a whim.

Fox News' president Jay Wallace explained the move, saying: "Secret Service passes for working White House journalists should never be weaponized." Fox is not the only organization filing an amicus brief. Nine other major media outlets are doing the same.

This is not the first time Fox has stood with CNN. In July, Trump banned CNN's Kaitlan Collins from covering an event in the Rose Garden after Collins had asked questions Trump didn't like. Fox News anchors Bret Baier and Shepard Smith both reported on the incident.

The Trump administration is taking the position that they are allowed to dictate access to the president and his staff at press conferences, just as they are able to dictate who does and does not get a one-on-one interview. This is not likely to fly, since it would allow a president to subject himself to only friendly reporters, nor does it square with past court rulings on the matter. U.S. District Judge Timothy Kelly, a Trump appointee, held a hearing Wednesday afternoon, and said he will render his decision Thursday afternoon. (V)

Flake Threatens to Block Judges if Mueller is Not Protected

Normally, this would be very big news, and would appear much nearer the top of the page. A Republican United States Senator has insisted on passing a bill to protect the work of special counsel Robert Mueller, and is threatening to vote against Donald Trump's judicial nominees if he does not get what he wants. Making the news even bigger is that the senator is on the Senate Judiciary Committee, which has 11 Republicans and 10 Democrats, and so he could really gum up the works if he wanted to.

So, how come this news is so far down the page? Because the senator in question is Jeff Flake (R-AZ). He has gotten out his saber and rattled it many times in the past year or so, and yet every time he eventually puts it away and votes for whatever Donald Trump wants. One might observe that he now has nothing to lose, since the elections are over, and his replacement (Kyrsten Sinema) will take her seat on January 3. True enough, but that has been the case for many months, ever since Flake decided not to stand for re-election. And yet, having nothing to lose has not given him a spine thus far. So, until he demonstrates that he does not belong alongside Dorothy, the Tin Woodsman, and the Scarecrow on the yellow brick road, items about threats that he has made will remain near the bottom of the page. (Z)

Avenatti Booked for Domestic Violence

Lawyer Michael Avenatti, who is representing Stormy Daniels in her lawsuits against Donald Trump, has already shown himself to be a peach of a guy. He's been credibly accused of stiffing his former business parter out of millions of dollars. He's leveraged both Daniels and the Brett Kavanaugh accuser he represented (Julie Swetnick) to get his own name in the headlines as much as is possible. He's declared that the Democratic nominee in 2020 really needs to be a white guy.

Now, Avenatti has been arrested for felony domestic violence, involving a woman other than his wife. He called the accusation "completely bogus," which is not terribly instructive, since that is what he would say even if it was true. Given his past questionable behavior, he is starting to run out of benefits of the doubt. And whatever happens here, his already-thin chances of making a run at the Democratic nomination in 2020 surely just went down the drain. (Z)

Thursday Q&A

Good questions just keep rolling in. Here's today's selection:

If a president or former president were convicted of a crime that would ordinarily result in jail time, would he actually be sent to jail? If so, would he (or his family) still be entitled to his Secret Service protection (and other benefits)? And if so, how would Secret Service protection work inside a jail? S.B., New Albany, IN

Tricky question. Let us start by observing that this is an area of the law that has been barely explored, since the Founding Parents did not feel much need to spell it out, and the vast majority of chief executives were law-abiding enough that there was no serious possibility of criminal prosecution.

The one exception to that rule, of course (at least, the one exception pre-2016), was Richard Nixon. The folks who considered the matter back then largely felt that a sitting president probably can't be prosecuted. But he can, of course, be impeached. And so, Tricky Dick was advised (by Sen. Barry Goldwater, famously) that if he did not resign voluntarily, he would be impeached and convicted and would forfeit all the privileges of being a former president (e.g., the six-figure salary, the free office space, free postage, etc.). Nixon was not independently wealthy, and so that scared him and probably helped convince him to throw in the towel.

However, the matter did not end there. No legal scholar seriously believes that winning the White House places one above the law for the rest of one's life. And so, there was a very real chance that Nixon would indeed have been prosecuted for his crimes, and may have done prison time. Gerald Ford said (probably truthfully) that this is part of the reason he pardoned Nixon, because he believed that the shame of an ex-president going to prison would tarnish the office for all who held it thereafter.

Now, note that these are two different things. Impeachment and conviction would likely result in forfeiture of the various presidential "perks," but criminal conviction probably would not. If both were to happen, however, the one thing that would raise some interesting questions (as you point out) is the Secret Service detail. That "perk" is not so much for the benefit of the ex-president as it is for the benefit of the country, since it would be very embarrassing if a former president was kidnapped or blown up by a mad bomber, or something like that. So, our best guess is that if a president was impeached and convicted, and then also convicted of criminal charges, he would probably still retain Secret Service protection. And since the USSS does not let anyone do their job for them, then that detail would become a prison detail.


What is the historical context of some states requiring a 50% or more majority win in their elections? Is it simply based on the concept that a public official be elected by a majority of voters (versus a plurality), or is there a little-known nefarious scheme behind the policy? N.M., Essex, VT

You are right to smell a rat. And perhaps that rat will become even smellier when we tell you that the seven states that require a majority in primary elections in order to be nominated are Alabama, Arkansas, Georgia, Mississippi, Oklahoma, South Carolina and Texas. As everyone who has followed the Kemp-Abrams contest knows, Georgia also (and uniquely) requires a majority in the general elections.

What is going on here? Well, this dates back to the era of one-party rule in the South (more below), when the Democrats called all the shots. The Democratic Party back then was divided into factions, just as the Democratic Party of today is. That meant that, in primaries, there might be two or three or four or five Democrats running for an office. Under those circumstances, a faction of the Party unacceptable to the bosses (say, the populist faction, or even the Klan) might just win a plurality and claim the Democratic nomination. So, that is why the 50% requirement was established. Once the primary (which was the real election) was held, the various establishment factions of the Democratic Party would unite behind whichever "acceptable" Democrat was still standing, in the event that an unacceptable candidate also snuck through.

Note, for the interests of thoroughness, that South Dakota and Vermont also have majority requirements for primaries in some circumstances, but they do not often come up.


In Monday's Q&A, you mentioned that Congress blocked elected members who were white Southerners and who won by suppression of the black vote. It was my understanding that during Reconstruction, the South started to elect black members of Congress, but that suppression of the black vote stopped that. What I'd like to know is, if the suppression was known to be occurring, who were the members that were blocked from being seated, and why did Congress stop blocking them, since as we know, the South didn't stop suppressing the Black vote? What happens to the seat if the elected member is blocked from being seated? R.J.H., West Grove, PA

Back to back questions about postbellum Southern politics. It is fortunate that we happen to have a Civil War historian on staff. With the caveat that Reconstruction was a long and complicated period, the basic answer is this: In the first elections right after the Civil War (1866), white Southerners elected a bunch of former Confederates to office, including former Confederate VP Alexander Stephens. That was clearly unacceptable, so none of those folks were seated. Note that suppression of the black vote was not a factor in these cases, since the franchise was not extended to freedmen until 1870.

Ultimately, "we didn't learn our lesson" behavior like electing former Confederates to office, the imposition of discriminatory black codes, frequent indulgence in extralegal violence (e.g., the KKK), and the like caused the Republicans in Congress to decide that President Andrew Johnson was out of his league, and that it was up to them to impose their will on the South. So, the Southern states were placed under martial law, a situation that lasted anywhere from 4 to 11 years depending on which state we are talking about (in fact, the event that marks the formal end of Reconstruction is the withdrawal of the last troops from the South). During this period, the 15th Amendment was passed, and black Southerners gained the right to vote (at a time when many white Southerners were legally disenfranchised). The army took strong steps, at least for a while, to protect the voting rights of freedmen. This resulted in the election of a lot of white Northerners (aka, "carpetbaggers") to various offices, but it also produced the first black congressmen in history, among them Sens. Blanche K. Bruce and Hiram Revels (both R-MS).

Slowly but surely, white Southerners (aka "redeemers") regained their right to vote, and then regained control of their state and local governments. Meanwhile, Northerners grew weary of the struggle. So, in a trade necessitated by the highly dubious presidential election of 1876, which involved 20 disputed electoral votes (including those of, you guessed it, Florida), the Republicans agreed to end Reconstruction if the Democrats agreed to concede the White House.

Southern Democrats did not go completely nuts overnight with the oppression after this, primarily because they didn't want to give the federal government any excuse to send the army back down South. It took about 15 years, and the start of a severe recession, before white Southerners truly returned black Southerners to second-class status. Around 1890, black folks' voting rights were taken from them using various tricks (grandfather clauses, poll taxes, outright violence), Jim Crow laws made their return, and lynchings jumped almost a hundredfold. Congress occasionally turned down an elected Southerner during this time, but it wasn't frequent. In 1896, the Supreme Court sanctioned segregation in Plessy v. Ferguson and, more broadly, told the South "do whatever you want." Congress took its cue from that and, by 1900, took no interest in the legitimacy of Southern elections. That would be the status quo for 65 years.

In the end, the total number of Southerners who were not allowed to take their seats in Congress during this time was about 30. In some cases, a new election was ordered. In others, the runner-up was awarded the seat instead. And in some, the seat stayed vacant until the next election.


Has an incumbent president ever dropped his VP for the re-election? R.G., Portland, OR

Sure, it's happened quite a bit. The most recent case was 1976, when Nelson Rockefeller was given the heave-ho by Gerald Ford in favor of Bob Dole. FDR did it twice (in 1940 and 1944), in order to please various factions within the Democratic Party. Abraham Lincoln did it in 1864 because his original VP (Hannibal Hamlin) was a limp noodle, and he wanted to make a show of unity by choosing the only Southern Democrat (Andrew Johnson) who did not resign his seat at the start of the Civil War. The two nastiest cases were: (1) Andrew Jackson, who not only dumped John C. Calhoun (they hated each other), but also threatened to hang him, and (2) Thomas Jefferson, who canned Aaron Burr because Burr tried to steal the presidency in 1800 via a loophole in the Constitution (quickly fixed thereafter). Benjamin Harrison, U.S. Grant, and Martin Van Buren complete the set, incidentally.

Of course, the question this raises is: Could Trump dump Mike Pence in 2020? It's certainly possible. Pence was added to the ticket to secure the evangelical vote and, to a lesser extent, the Midwest. But Trump, as we know, has the evangelicals wrapped around his finger. The President is very mercurial, of course, and if he got irked about Pence's pretty obvious maneuvering to set himself up to replace the Donald, he might very well drop Pence out of spite. The GOP has a large supply of far-right-wing Midwestern evangelicals, if Trump wants to trade apples for apples. Or, Trump being Trump, he might also go with a real curveball. Trump-Palin 2020? Trump-Hannity 2020? Donald-Ivanka 2020? Trump-Kid Rock 2020? Literally nothing would be beyond belief.


Has there ever been a fictional character (example: Mickey Mouse) to win an election through write-in ballots? And if not, what would happen if it did occur? M.K., Essex Junction, VT

No, that has not happened, nor can it happen. Many states limit write-in votes, usually to declared write-in candidates. And federal and state laws both make clear that votes for folks who are not real simply count as non-votes. The same holds for people who are (or were) real, but are clearly not actual candidates. Jesus Christ gets thousands of votes every election, and God, Abraham Lincoln, George Washington, Santa Claus (aka St. Nicholas), and quite a few others usually manage to get a few, too.

What can, and occasionally does, happen is that animals get elected to office. The most famous example is Boston Curtis, a mule who was elected to the Republican central committee of Milton, Washington, in 1938 (he was put on the ballot by a Democrat, in an effort to make GOP voters look dumb. We would suggest it worked.). Mr. Curtis was quickly removed from office. On the other hand, Bosco the dog (mayor of Sunol, California, 1981-1994), Stubbs the cat (mayor of Talkeetna, Alaska, 1997), Duke the dog (mayor of Cormorant, Minnesota, 2014-17), and Sweet Tart the cat (mayor of Omena, Michigan, 2018-present) were all allowed to "serve," as their positions are purely ceremonial. In fact, Omena's entire city council is made up of animals; they use the elections to raise money for animal shelters. So, in addition to Sweet Tart, Diablo Shapiro (dog) is first vice-mayor, Punkin Anderson-Harden (dog) is second vice-mayor, Harley Jones (goat) is press secretary, and Penny Labriola (chicken) is "special assistant for fowl issues."


My question is about your use of the word "upshot." I have always understood an "upshot" to be a potentially positive outcome of a situation, with the corresponding negative outcome being a "downside." Yet, on multiple occasions, (Z) will say "the upshot is" and then explain some negative possibility. Is my understanding of the meaning of "upshot" in error, or is (Z) misusing it when he actually means to use the word "downside"? P.M., Currituck, NC

Not to be the bearers of bad tidings, but your understanding is indeed incorrect. The definition/description you give actually comes closer to describing the word "upside," not "upshot."

"Upshot" means "the conclusion" or "the gist." We tend to be a little leery of word etymologies around here, because the evidence is often scant (take a look, sometime, at the umpteen different origin stories for the phrase "the whole nine yards"). However, the OED says that the word comes from archery tournaments many centuries ago, when the shot that put the winner into the lead for good was known as the "upshot." Since that shot was the conclusion of the competition, the word eventually came to refer to any conclusion, archery or no.


Could you explain the oft-repeated statement, and its variations, of: "Antonin Scalia was a brilliant jurist?" I'm not a lawyer and read some of his opinions over the decades with a flat reaction. Is it the case of speaking well of the dead or were there contributions of which I am unaware? J.M., Portland, OR

Well, he was a jurist. And, he was certainly brilliant. Whether he was a brilliant jurist is, we suppose, in the eye of the beholder.

Scalia's reputation is rooted in a few things that were true of him. First, he was a very good public speaker. Second, he was a good debater. Third, he wrote interesting, often wacky, opinions with jokes and things like that. Given how dry most legal writing is (read a Souter or a Thomas opinion sometime), it's not surprising that many lawyers and scholars quite enjoy his prose. And, as a consequence, he is cited a fair bit more than the average SCOTUS justice.

That said, he was famously an originalist, a devotee of the notion that you must answer any legal question by trying to figure out what the Founding Parents intended. This is, in our view, an intellectually dubious position. We are not lawyers, either, but (Z) is a historian, and finds it hard to imagine that Geo. Washington & Co. had opinions on gay marriage, or net neutrality, or affirmative action, or who has to bake a cake for whom, or who has to pay union dues, much less opinions that they documented for the ages. In fact, our view is that originalism is mostly just a way to provide cover for one's hyperpartisanship. Put another way, Scalia often seemed guilty of committing Sherlock Holmes' cardinal sin, and of adjusting his facts to suit his conclusions, rather than adjusting his conclusions to suit his facts. This was particularly true as he reached the end of his career. So, while we acknowledge that Scalia was a first-rate intellect, we kinda agree with you that his opinions were generally nothing to write home about.


Update: On Monday, we wrote that a member of Congress can't be seated, and then end up un-seated when a recount goes against him, because election results have to be certified. Several readers wrote in to remind us of the wonky 1974 Senate election in New Hampshire, which pitted John A. Durkin (D) against Louis C. Wyman (R). Wyman was declared the winner, but by only 355 votes, so Durkin asked for a recount. Durkin won the recount by 10 votes, was given a provisional certification of election, and prepared to take his seat in the Senate. Then Wyman sued, forced another recount, won that by just two votes, and was given a certification of his own. The sitting senator for New Hampshire, Norris Cotton (R), promptly resigned, and the governor of New Hampshire appointed Wyman to the seat, so he would have seniority over other freshman Senators.

Problem solved, right? Not so much. That arrangement lasted three days (December 31, 1974 to January 3, 1975) before Durkin appealed to the Senate Rules Committee, which has final jurisdiction over such matters. The appeal eventually caused the seat to return to Cotton, until the matter could be resolved. However, the Rules Committee could not reach a decision. Finally, both Durkin and Cotton agreed to a new election, and in that one Durkin trounced Wyman. That means that the seat was passed along thusly: Cotton-Durkin-Wyman-Nobody-Cotton-Durkin. And poor Wyman was a U.S. Senator for a grand total of 72 hours, all of them during a recess.


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