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Kavanaugh May Help House Democrats and Senate Republicans
The turmoil caused by the nomination of Brett Kavanaugh to the Supreme Court is likely to affect the House and Senate midterms differently. In the House, Kavanaugh is going to help the Democrats because college-educated suburban women, who are up for grabs, are far more likely to believe Christine Blasey Ford than Kavanaugh. There are dozens of districts that are in play where Kavanaugh is a net minus for the GOP and very few competitive districts where he is a plus. The districts where he is a plus are so red that they are not in play.
The Senate is a completely different kettle of fish. There it is all about "Are you with Trump or against him?" If Democrats in states where Donald Trump is very popular vote against Kavanaugh, their opponents will pummel them with ads attacking them for their votes. If they vote for Kavanaugh, their own base will disown them. Sens. Joe Donnelly (D-IN) and Claire McCaskill (D-MO) are already "no" votes and are being hit with both barrels. Sens. Joe Manchin (D-WV) and Heidi Heitkamp (D-ND) are waiting to see which way the wind is blowing before making a decision.
It is not hopeless for them, though. If the FBI report turns up more evidence that Kavanaugh did commit sexual assault one or more times, they will still be attacked, but can parry the attacks better with: "No rapists on the Supreme Court." That's not quite true, of course, but in campaigns things get simplified and even in red states, rapists (or attempted rapists) aren't terribly popular.
Normally, Supreme Court fights motivate Republicans more than Democrats, but this year the reverse could be true. Whether that is true depends on what happens in the next 2 weeks. If Kavanaugh goes down because Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK) vote against him, Republicans will be furious, but at them, not at the Democrats. Democrats will be jubilant and energized. If he is confirmed, Republicans will be excited, but may not see as much need to vote since control of the Senate is then less important. Democrats will be crying in their beer and may think all is lost and may not think voting matters anymore. Generally, Republican turnout is much higher than Democratic turnout in midterms unless there is something major on the agenda (like a pending Supreme Court nomination), so Democrats are better off if a big confirmation battle is coming after Nov. 6. They need a boost more than the Republicans do. (V)
Even If He Is Confirmed, Kavanaugh May Not Be Home Free
If the Democrats win the House, Rep. Jerrold Nadler (D-NY) will become chairman of the House Judiciary Committee. Yesterday, he told ABC's George Stephanoppulos: "We can't have a justice on the Supreme Court ... who has been credibly accused of sexual assaults, who has been credibly accused of various other things ... including perjury." In other words, Nadler is fully prepared to investigate a Justice Kavanaugh for lying to the Senate and possibly impeach him if his committee feels Kavanaugh committed perjury, a felony. After all, the House impeached Bill Clinton for ... perjury.
Nadler also questioned Kavanaugh's ability to be impartial on the Court, given his tirade against Democrats during Thursday's hearing. Not being impartial is not an impeachable offense, so if Nadler wants to go after Kavanaugh, it would have to be about lying to the Senate.
He also put out a warning that if Trump tries to interfere with special counsel Robert Mueller's investigation—for example, by replacing Deputy AG Rod Rosenstein with a more pliant deputy—he might consider that obstruction of justice. He also noted that a crime might not be an impeachable offense and an impeachable offense might not be an illegal act. He said they are different tests. In any event, if Nadler becomes chairman, he will begin investigating many members of the administration for corruption. (V)
Everyone Weighs in on Kavanaugh
While the FBI is conducting its weeklong (bonus) investigation of Brett Kavanaugh, they will presumably keep things close to the vest, even as the story remains at the forefront of American politics. Since we won't have much sense of what is actually going on for a few days, there is going to be a lot of coverage about what various people think is going on. So it was on Sunday.
To start, former FBI director James Comey isn't going away anytime soon. From his expert vantage point, he has written an op-ed for the New York Times that says Kavanaugh's explanations about his yearbook will definitely be a major red flag. "[FBI agents] know that little lies point to bigger lies," Comey writes. "They know that obvious lies by the nominee about the meaning of words in a yearbook are a flashing signal to dig deeper."
And on the topic of lying, Sen. Jeff Flake (R-AZ) was on "60 Minutes" on Sunday, and declared that if Kavanaugh is found to have lied during his testimony, the nomination is "over." He was also asked about Kavanaugh's temperament during Thursday's hearings, and said that he understood why the nominee might be angry, but that, "As it went on, I think his interaction with some of the members was a little too sharp." Flake's colleague, Sen. Chris Coons (D-DE), appeared alongside him, and was less charitable. "He was clearly belligerent, aggressive, angry," said the Senator. "I was really struck that I thought his anger got the best of him. And he made a partisan argument that would've been best left to be made for his advocates and defenders on the committee."
Meanwhile, Kavanaugh seems to have attended school with something like a million people, because folks keep coming out of the woodwork to confirm that he was a heavy drinker in his younger days, and that he grossly mischaracterized his past during the hearings. The latest is Chad Ludington, a fellow Yalie, who says that he often saw Kavanaugh "staggering from alcohol consumption" and that he was a "belligerent and aggressive" drunk.
Also on Sunday, Rachel Mitchell—the Arizona prosecutor brought in to ask questions of Christine Blasey Ford—issued a memo in which she opined that no "reasonable prosecutor" would bring a case against Kavanaugh on the basis of Ford's testimony. One wonders if, having been labeled a disappointment by virtually every right-wing media outlet and advocate in the country, she is trying to prove her worth. Certainly, many right-wingers will glom onto her memo as "proof" that this should not interfere with Kavanaugh's nomination. However, while Mitchell might well be right (she is an expert, after all), it's worth noting the following: (1) A prosecutor would make such a decision after a thorough investigation, of the sort that has not happened yet, and not just one person's testimony; (2) Once such an investigation has taken place, seemingly "old" crimes can absolutely be prosecuted (ask Bill Cosby); and (3) Kavanaugh was not on trial, he was being interviewed for a job, a process that involves a very different standard of "evidence." Add it all up, and Mitchell's conclusions don't actually mean much.
And finally, polling on the Kavanaugh situation is starting to be released. And given that his truthfulness (or lack thereof) may prove to be more significant than his sexual behavior, the results from YouGov are certainly of interest. It is entirely predictable that Democrats believed Ford and Republicans believed Kavanaugh, but the extent of the imbalance is still pretty remarkable:
In other words, the FBI could come up with ironclad proof of Kavanaugh's innocence, and a sizable number of Democrats wouldn't buy it. Or, the Bureau could find proof of his guilt, and a sizable number of Republicans could call it fake news. So, no matter what they find, there is no predicting what will happen until the Senate actually takes the fateful vote. Actually, it doesn't matter what 99.99% of Republicans think. It only matters what two Republicans think: Sens. Lisa Murkowski (AK) and Susan Collins (ME).
It is going to be a tough call for them. According to Axios, Kavanaugh is "too big to fail." The thinking in the White House is that if Kavanaugh goes down, the base will be so angry that they might all stay home on Nov. 6, leading to a blood bath for the GOP. There is no time for a second nomination before the midterms. In fact, there is no candidate lined up as plan B, even for a possible lame-duck session of the Senate in November or December. It is Kavanaugh or bust. The pressure on Collins and Murkowski will be screwed up to 10, maybe 11. Collins is much less moderate than she likes to appear, but she is up in 2020 and her vote won't be forgotten by then, so she will really be squeezed. Murkowski is more independent than Collins and doesn't like being pushed around, so Republican leaders have to be careful about leaning on her. On the other hand, she always has a long list of things she wants for Alaska (many of them involving oil), and can sometimes be bought off by being given goodies from her list. In any event, these are the two key senators to watch. Sen. Jeff Flake (R-AZ) occasionally acts like a moderate, but he rarely votes that way, so he probably just wanted some cover before voting "yes." (Z)
New NAFTA Looks to Be a Go
The United States was able to agree on a NAFTA replacement with Mexico, a little over a month ago. However, there was virtually no chance Congress would sign off unless Canada was a part of the pact, too. The Trump and Trudeau administrations set a deadline of 11:59 p.m. Sunday to make that happen, and thanks to a flurry of last-minute negotiations, they got it done. The deal will now head to the legislatures of the three nations for approval, which will require waiting a minimum of 60 days, by law.
Full details are not known, but the new pact appears to improve the United States' position vis-a-vis its two neighbors in fairly subtle ways. For example, it will be a little easier for American dairy farmers to sell their products in Canada, and a little harder for Mexico to build cars and send them to the United States. The White House, of course, is celebrating the pact as a major victory, with US Trade Representative Robert Lighthizer signing off on a statement that declares the new agreement will "strengthen the middle class, and create good, well-paying jobs and new opportunities for the nearly half billion people who call North America home." In a pretty obvious effort to take as much credit as possible, the NAFTA name is being abandoned, and the agreement will be called the United States-Mexico-Canada Agreement. Obviously, a lot of thought and creativity went into that one (though the smart money says that most people just call it NAFTA 2.0). Anyhow, if the administration continues its usual pattern—achieve something fairly small, declare a major WIN, and then drop the issue—then this should be the end of this discussion for a long time. (Z)
California Passes Net Neutrality Law, DoJ Sues
On Sunday, Gov. Jerry Brown (D-CA) signed into law a bill that creates very strong net neutrality requirements for the Golden State. Under its terms, Internet providers will not be allowed to block or slow specific types of content or applications, or to charge companies for faster access to customers. It took just hours for the Dept. of Justice to announce it will file a lawsuit, with AG Jeff Sessions angrily declaring, "Once again the California legislature has enacted an extreme and illegal state law attempting to frustrate federal policy. The Justice Department should not have to spend valuable time and resources to file this suit today, but we have a duty to defend the prerogatives of the federal government and protect our Constitutional order."
The reason that the Trump administration is so angry is that the California law would effectively nullify the FCC's decision to get rid of net neutrality. First, because other blue states will undoubtedly follow suit. Second, because it would be very difficult (if not impossible) for providers to apply one set of standards for users in some states, and a different set of standards for users in others. It's hard enough with cars, which is why most manufacturers just manufacture all of their automobiles to meet California's stringent air quality standards. It would be all the harder for online traffic, since figuring out where someone is located is no small matter. Yes, IP addresses can be used as a crude tool, but lots of folks have IP addresses that come from a pool assigned to a multi-state concern (for example, Spectrum's IP pool, or Verizon's), or else they use a VPN or other services that deliberately obscure their geographical locations.
The basis of the DoJ lawsuit will be that it is the federal government's purview to regulate interstate commerce, and not that of the states. True enough, but legal experts agree it's a longshot in this particular context. While buying something from amazon.com is clearly "commerce," it gets a bit murkier when it's something like a person going to their public library and checking, say, electoral-vote.com. Further, the FCC specifically declared (in 2015) that it has no power to regulate broadband Internet access providers. And so, that makes regulating ISPs the province of...the states.
In short, net neutrality is not dead. And even if the Trump administration fights this in court and wins (which will take a year or two), the next Democratic administration (which could take office as soon as January 20, 2021) will undoubtedly bring back net neutrality at the federal level. That, of course, is the downside to governing by executive order and policy-tweaking; the other guys can just change everything back once they have the reins of power in their hands again. (Z)
Preview of the 2020 Senate Races
If the Senate Democrats lose North Dakota, Indiana, Missouri and Florida (the most competitive races) and don't flip any Republican seats, they will end up with 45 seats in January. On the other hand, if they hold all their own seats and flip Arizona, Nevada, Tennessee, and Texas, they would end up with 53 seats, probably the best case for them. So it now appears the balance will be somewhere between D45/R55 and D53/R47. In all foreseeable scenarios, a closely divided Senate.
That brings up the question of what might happen in 2020, a presidential election year, in which far more Democrats vote than in midterm years. This year's Senate map strongly favors the Republicans because 26 Democratic seats are up to only 9 Republican seats. In 2020, the situation is reversed, with more Republican seats up. Here is the 2020 Senate map:
While many Republican incumbents will be up in 2020, most are from deep-red states and all they have to do to win is avoid being caught in bed with a live boy or a dead girl (and even that might not be fatal). Nevertheless, some seats might flip. For the Democrats, Alabama is going to be a huge problem. Sen. Doug Jones (D-AL) managed to win last year because his opponent was credibly accused of being a child molester. Assuming the Republicans can come up with a better candidate, Jones is in deep doodoo. But the good news for the Democrats is the Jones' seat is the only one really at risk (marked with a question mark).
In contrast, five Republicans could lose their jobs: Cory Gardner (CO), Joni Ernst (IA), David Perdue (GA), Thom Tillis (NC), and Susan Collins (ME). Assuming Alabama is a lost cause for the Democrats, the best case scenario looks like a net gain of four seats (with the usual disclaimers this far out). That means if the Democrats end up with 47 or more seats in January 2019, they have a shot at taking over the Senate in 2021. With fewer than 47, it will be very tough for them. (V)
Democrats Will Examine Trump's Tax Return If They Win the House
A law enacted in 1924 gives the chairman of the House Ways and Means Committee (and two other officials) the authority to see any individual's tax return. If the Democrats take the House, the new chairman will be Rep. Richard Neal (D-MA), who is now on the record saying he wants to see the return. If he gets it, the return is surely going to leak within hours.
What happens next depends on what is in it. Count on every major news outlet hiring a team of CPAs to go over it with a microscope. If it turns out that Trump is in hock to the Russians up to his ears, that will instantly generate calls for his impeachment. If it turns out that he is not even close to being a billionaire, that may bother some people who voted for him because he claimed to be a hugely successful businessman. If there is nothing of note in the return, probably nothing much will change, but if that were the case, he would probably have released it years ago. (V)
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