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GOP Is Increasingly Confident Kavanaugh Will Be Confirmed
Donald Trump and key Republican leaders are now increasingly confident that Brett Kavanaugh will be confirmed to the Supreme Court. Kavanaugh will testify again before the Senate Judiciary Committee Monday to give the senators a chance to ask him if he tried to rape Christine Blasey Ford when he was 17. He will say: "No, senator, I did not." The Republican senators will all feel relieved and vote to confirm him later in the week, having fulfilled their civic duty.
Ford may or may not testify. Her lawyer said that she wants the FBI to fully investigate the matter before testifying. Judiciary Committee Chairman Chuck Grassley (R-IA) has said there is no time for that (meaning that there is an election coming up in less than 7 weeks and a vote too close to it could be toxic for the GOP). Whether Ford will relent and testify anyway remains to be seen, but it is abundantly clear that Grassley, Trump, and the Republican leadership don't care a whit about getting the truth. What they care about is getting Kavanaugh confirmed as fast as possible. In addition to his "Monday or no day" declaration, in fact, the Chairman has also advised Ford that she has until Friday to make a decision, or else the invitation to talk to the Senate is null and void.
One example of their lack of interest in the truth is a new report from Ford's classmate, Cristina King Miranda, who says that many of the girls at the school heard about the alleged rape attempt right after it occurred. In a thorough investigation, the FBI would interview Miranda and as many other classmates of both Kavanaugh and Ford as possible to try to corroborate either story. But Grassley has no interest in a thorough investigation.
One of the reasons Republicans are feeling more confident now is that Sen. Bob Corker (R-TN), who is retiring and thus doesn't have to worry about an election, has changed his tune. At first he wanted a thorough investigation. Now his priority is voting quickly. Ditto for Sen. Jeff Flake (R-AZ), who is also retiring. Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK) have now flip-flopped too. We've seen this scenario play out many times. Some Republican senators are "concerned" about something the leadership is doing (like ramming through a lifetime appointment to the Supreme Court without thoroughly vetting the candidate, or voting for a tax bill none of them has read), but in the end almost all of them fall in line.
The public is lukewarm about Kavanaugh. An Ipsos poll taken Sept. 11-17 found that 31% of U.S. adults want Kavanaugh on the Supreme Court and 36% do not want him there. Opposition to Kavanaugh has been slowly growing over the past weeks. But public opinion doesn't really matter much to the senators.
Senate Majority Leader Mitch McConnell (R-KY) is in something of a bind. He knows that if the Senate basically brushes off Ford and approves Kavanaugh this week, it might cost Republicans the House and maybe even the Senate. On the other hand, having a new justice on the Supreme Court who has been groomed by the Federalist Society for years for precisely this position, is such a big prize that it might be worth giving up the House for one cycle. It's true that if the Republicans give Ford short shrift, it may give the red-state senators up in November an out when they are attacked for voting against him, but a 51-to-49 confirmation seats the new justice on the Court for just as long as a 100-to-0 confirmation. After all, Clarence Thomas was confirmed 52 to 48 and 17 years later, he is still going strong with probably another 10 or 15 years to go. So for the Republicans, getting at the truth is irrelevant. The tradeoff is angering college-educated women and losing the House for one cycle but getting a justice they like for 30+ years vs. making the women happy and maybe not losing the House but possibly losing the chance to fill a Supreme Court slot. And given that voters have been pretty reluctant to punish the GOP for seemingly bad behavior in the past few years, it may even be the case that Trump & Co. can have their cake and eat it, too. (V)
GOP May Get Kavanaugh, But May Not Get Its Wish
On Tuesday night, Brett Kavanaugh's nomination to the Supreme Court was in serious trouble. By Wednesday night, the tide had turned, and now—fair or not—his fate is essentially in Christine Blasey Ford's hands. If she decides to testify before the Senate, despite her very reasonable concerns that she'll become an object of scorn, derision, threatened violence, and maybe even actual violence, then the Judge could be in trouble again. If she does not, then folks on the right (including those who ought to know better) will conclude that her claims were just a tempest in a teapot, and that if she "really" had something to say, she would have gone before Congress and said it. Never mind that most of these folks would be scared witless to speak in front of Congress on any subject, inasmuch as Americans fear public speaking more than anything else, including—you know—death.
If Kavanaugh does make it through the process, he will do so as a deeply flawed nominee. He is connected to Bush-era decisions on torture. He may have perjured himself before Congress, on multiple occasions. He may be about to do so again on Monday. He was credibly accused of attempted rape. He is a close associate of a judge who fled the bench because he was a serial sexual harasser. He was deeply involved in Gore v. Bush, one of the most controversial, and arguably most anti-Democratic decisions of the last century. Most of these unsavory corners of his resumé went largely unexamined, up to and including the withholding of relevant documents, and none of them got anything close to exhaustive attention. When newly-minted lawyers are admitted to the bar, part of the process is going through a series of interviews and background checks in which the candidate's character is examined. Folks who have experienced the process say that the red flags that have been raised about the Judge's past would, at the very least, cause a delay while the bar looked into the matter. And, they might even cause his license to be denied. Thus we have the curious situation where more care and attention is given to those climbing onto the bottom rung of the legal profession than to someone who is about to climb onto the very top rung.
In any case, even if Kavanaugh survives all of this and is confirmed, probably by a vote of 51-49, or maybe 52-48, he will not cease to be a flawed nominee whose closet skeletons never really saw the light of day. And he will be joining a Court that was already hyper-politicized before he ever got there. In part, this was by the Court's own hand, and the endless parade of 5-4 decisions that follow the same, predictable partisan pattern. And in part, it was by the GOP members of the Senate, who have now rammed through several dubious nominees, on top of bending and twisting Article III beyond recognition in order to create the currently open seat. It is worth noting that since the Senate expanded to 100 members in 1959, only three justices managed to get confirmed without receiving at least 60 votes. Those three are all conservatives who sit on the Court as we speak: Clarence Thomas (52-48), Samuel Alito (58-42), and Neil Gorsuch (54-45). It's possible that this shows that Democrats have grown unreasonable and hyper-partisan themselves, although they seem to have had little problem with confirming right-leaning judges with stronger resumés, including John Roberts (78-22), David Souter (90-9), Anthony Kennedy (97-0), and Antonin Scalia (98-0).
However the blame for the current state of the Court deserves to be apportioned between the two political parties, the bottom line is this: The Supreme Court, much more so than the other parts of the federal government, relies on its reputation and its moral authority. The Court commands no troops or police officers, and has no ability whatsoever to enforce its decisions. Instead, it relies on the executive branch (in some cases), and on state governments and citizens to abide by its decisions (in others). However, there can be, and often is, rebellion from all three quarters. From Andrew Jackson's "Mr. Marshall has his decision, now let him enforce it," all the way through the present day, presidents have been willing and able to ignore Court decisions they did not like. This is particularly true when the Court's reputation is at a low point, as it was (for example) before and during the Civil War (thanks, in particular, to the Dred Scott decision). States have also rebelled openly against SCOTUS, while also undermining unpopular decisions covertly. One recalls the Southern states who responded to 1954's Brown v. Board with indifference (well, except for a bunch of angry protests with signs and everything), and then continued merrily along with their segregationist ways. As late as 1968, only 5% of Southern schools were integrated. This is probably the most famous example of state-level defiance, but there are hundreds and hundreds of others across the decades. And finally, there are private citizens, who may have the easiest time of all ignoring the Court, particularly if they do it en masse. For example, there's 1986's Bowers v. Hardwick, in which a 5-4 majority said that laws criminalizing gay sex were OK. While we have not done any first-hand research on this matter, we are pretty sure that gay folks in the 13 states that had such laws did not go celibate for 17 years until the decision was reversed in Lawrence v. Texas.
It is clear that today's GOP leadership believes that when and if they get Kavanaugh confirmed, they can then secure a raft of right-leaning decisions that will take the U.S. back to, well, the 1950s presumably. At least, that's the last decade in which America was "great," according to the MAGA view of the world. Donald Trump, Mitch McConnell, & Co. don't often consult their history books, it seems, but if they do this time they might learn that they should not expect smooth sailing. If the Court's reputation keeps sinking—and it certainly will, especially if Kavanaugh's confirmation is railroaded through—then left-leaning citizens, states, and presidents will feel justified in pushing back against SCOTUS decisions, up to and including ignoring them outright. It's happened many times before, and it looks like it's about to happen again. And then there is the possibility that if the Democrats control the entire government in 2021, they will abolish the filibuster and expand the Court. (Z)
Trump: I Don't Have an Attorney General
In an interview with The Hill yesterday, Donald Trump said: "I don't have an attorney general. It's very sad." Of course, that is complete nonsense. He has an attorney general. He just doesn't have one who sees his job as being Trump's personal lawyer, although he does see his job as carrying out Trump's policies, especially on immigration.
Trump's beef with AG Jeff Sessions, of course, is that he recused himself from overseeing the Russia investigation. As Sessions explained to the Senate Intelligence Committee in April, he had no choice because Dept. of Justice regulation 28 CFR 45.2 required him to do it. But Trump doesn't understand Dept. of Justice regulations. Too many words and things. All he knows is that special counsel Robert Mueller is closing in on him, he is scared about what comes next, and wants the AG to protect him by shutting down the investigation.
In addition to wearing his emotions on his sleeve, and venting to anyone who will listen, there is likely another factor in play here. It is clear that Sessions is not going to leave voluntarily, regardless of how much abuse he takes, because he is too enthused about the opportunity to crack down on immigration and to try to keep pot illegal for a little while longer. So, he's going to have to be fired. And if Trump is going to swing the ax (or, more likely, have Chief of Staff John Kelly swing it for him), there is no better time than on or around November 7. That will be as far away from the next election (and an angry response from GOP voters) as is possible, and the story will also get drowned out, to an extent, by all of the post-election news. So, the President is presumably priming the pump with the base, so they aren't taken too much by surprise when Sessions receives his one-way ticket out of town.
Mueller understands all of this, of course, and is probably thinking about how to handle being fired with little notice. There are a couple of things he can do. One thing is to make sure the attorneys general of New York, Virginia, and perhaps other states have copies of all the documents, recordings, and other data he has collected so that if a new AG orders everything to be incinerated, they won't really be gone. Second—and this is risky and not Mueller's style—he could formally indict Trump. If he did that, by law his report must be sent to Congress, so a new AG couldn't bury it. Also, a new AG couldn't just unindict him. Only the Supreme Court could do that. If Justice Kavanaugh were the fifth vote to kill the indictment, there might be a bit of blowback. (V & Z)
College Students Don't Vote Because They Don't Know How to Buy a Stamp
It is well known that millennials in general, and college students in particular, have miserable voting records. A focus group in Virginia tried to find out why. One of the results was somewhat surprising, at least to non-students. Students can request an absentee ballot online. That is something they are quite familiar with and can do easily. Next they fill it out and put it in the envelope it comes with. Then they notice the message in the upper right corner of the envelope that a stamp is needed. This is where the trouble comes in. What's a stamp and where might one acquire one? That question flummoxed many students. One focus group member noted: "That seems to be like a hump that they can't get across." All of the members said they knew lots of people who wanted to vote but couldn't because they didn't know how to get a stamp.
Actually, buying stamps is easy. Just go to store.usps.com/store/home and buy them online. Maybe counties ought to include an enclosure along with the absentee ballot pointing out that the U.S. Postal Service sells stamps online. It might increase voter participation considerably among college students and millennials. Alternatively, absentee ballots could be made postage-free. After all, the members of Congress get that privilege, so why not the people they work for? (V)
Indicted Congressman Will Actively Campaign for Reelection
After Rep. Chris Collins (R-NY) was indicted for securities fraud, Republican leaders in New York frantically looked for a way to get a replacement on the ballot, but somehow they didn't succeed and his name will still appear there. That being the case, Collins has decided to actively campaign to keep his seat. After all, if he is found not guilty at his trial, he will need a job and his current one pays $174,000, so why not try to keep it?
Collins' upstate NY-27 district is R+11, so normally an unindicted Republican incumbent should have a pretty good chance of holding it. But if the voters think he is a crook, his opponent, Grand Island Town Supervisor Nate McMurray (D), could win. So, the indictment changes the dynamics of the race enormously. McMurray isn't going to talk about Trump, or liberal vs. conservative, or any policy issues, he is just going to hammer Collins for breaking the law. Politics is full of peculiarities. When McMurray signed up to be the Democratic sacrificial lamb, he had to know it was a hopeless quest and he would be crushed. But now a turn of events he could not have foreseen has made it into a real horse race. If he makes it to D.C., he might want to compare notes with that other Lamb (Conor) or Sen. Doug Jones (D-AL), a member of the Senate who by all rights shouldn't be there. They could also hail a taxi, and include the fellow who lives at the other end of Pennsylvania Avenue in that discussion. (V)
You'll Probably Be Disappointed on Election Night
According to Nathan Gonzales at Roll Call, partisans on both sides of the aisle are likely to be disappointed on election night. The problem is that there are so many races that could be close that they might not be called for days. In particular, with the Senate hanging in the balance, if one or two races require counting all the absentee ballots, that question could linger for days. Also, there could be recounts in close races. Additionally, Washington State has several close House races and all the votes are mailed in, so it is possible that they can't be called for days after Election Day. Finally, the Mississippi special Senate election probably won't produce a winner on election night, so that race probably can't be called until the runoff on Nov. 27. In short, people wanting to know "which party will control Congress" may be in for an unhappy night on Nov. 6. (V)
A Tale of Two Polls
There have been two very different polls of the Texas Senate race in the last two days. On Tuesday, it was Quinnipiac's read of the situation, in which they gave Sen. Ted Cruz (R-TX) a 9-point lead (54-45). If true, that is his best result of the entire campaign. Maybe he has righted the ship, then? Not so much, if you believe the Ipsos poll that MSNBC released on Wednesday, which has Rep. Beto O'Rourke (D-TX) up by two (47-45). If true, then that is his best result of the campaign. If you are thinking: "Why didn't Quinnipiac just call cell phones?" the answer is that it is illegal for computers to call cell phones and hand dialing thousands of numbers is an expensive business.
What is going on here? While there may have been some statistical noise, and some movement within the margin of error, an 11-point difference is too big to be explained entirely (or even mostly) by those things. It's also not the skills of the pollsters, as far as we know. Yes, liberal MSNBC's poll produced a pro-Democratic result, but the pollsters they used are equally as good as Quinnipiac (both get an A- in FiveThirtyEight's ratings, and both are well-established and have been doing this for a long time).
In fact, the difference in the two results appears to be the product of two things. First of all, Quinnipiac used only landlines to conduct their poll, while Reuters-IPSOS-UVa. used only the Internet. As we have pointed out many times, the former approach is going to miss lots of young voters (who tend to have only cell phones), the latter is going to miss lots of older voters (who are much less likely to use the Internet and/or to be willing to respond to Web-based polls).
All pollsters try to correct for sampling bias, but that requires an accurate model of what the actual electorate will be on election day, something no one knows now (and may never know). If Quinnipiac assumed that 23% of millennials will vote but Ipsos assumed that 26% of millennials will vote, they will get different results. And while we are at it, how about some assumptions about how many blacks, poor people, women, college graduates, Latinos, Republicans, high school dropouts, and dozens of other categories, will turn out to vote. This is what makes polling so hard now and why different polls by reputable outfits can differ so much.
The second factor, meanwhile, is that Quinnipiac, as many pollsters do right around this time of year, started talking only to "likely voters" instead of "registered voters" (a jump that Reuters-IPSOS-UVa. has not yet made). Generally speaking, Republicans candidates enjoy a spike whenever that switch is flipped, since Democratic voters tend to be, well, flakier than their GOP counterparts. This is the primary reason why Cruz did so much better in this version of the poll as opposed to earlier Quinnipiac surveys. And it is true that "likely voter" polls generally produce more accurate results than "registered voter" polls do. However, given the landline issue, along with the fact that it's very hard to accurately model the electorate in a possible wave year, that Cruz +9 result should still be taken with more than a few grains of salt. This is why our map above is based on an average of recent polls, since that tends to correct for biases or errors in the methodology of any one poll. (Z)
Today's Senate Polls
| State | Democrat | D % | Republican | R % | Start | End | Pollster |
| Arizona | Kyrsten Sinema | 47% | Martha McSally | 44% | Sep 05 | Sep 14 | Ipsos |
| California | Dianne Feinstein* | 44% | Kevin de Leon (D) | 24% | Sep 05 | Sep 14 | Ipsos |
| Florida | Bill Nelson* | 41% | Rick Scott | 42% | Sep 13 | Sep 16 | Florida Atlantic U. |
| Florida | Bill Nelson* | 45% | Rick Scott | 46% | Sep 05 | Sep 12 | Ipsos |
| Massachusetts | Elizabeth Warren* | 54% | Geoff Diehl | 24% | Sep 13 | Sep 17 | Suffolk U. |
| Nevada | Jacky Rosen | 43% | Dean Heller* | 46% | Sep 07 | Sep 17 | Ipsos |
| Pennsylvania | Bob Casey* | 52% | Lou Barletta | 38% | Sep 12 | Sep 13 | Pulse Opinion Research |
| Tennessee | Phil Bredesen | 45% | Marsha Blackburn | 48% | Sep 10 | Sep 12 | Triton Polling and Res. |
| Texas | Beto O`Rourke | 47% | Ted Cruz* | 45% | Sep 06 | Sep 14 | Ipsos |
* Denotes incumbent
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