Barrett Is Confirmed...

Judge Amy Coney Barrett was confirmed by the Senate yesterday and then officially sworn in as Ruth Bader Ginsburg's replacement just a few hours later. The swearing-in took place at a White House ceremony similar to the one when Barrett was formally announced. This time, however, the administration decided to observe social distancing. Wonder why...

As expected, the vote was along partisan lines, with only Sen. Susan Collins (R-ME) crossing the aisle. That leaves us with a final tally of 52 to 48. Senate Majority Leader Mitch McConnell (R-KY), who apparently couldn't resist a little gloating, took a few potshots at the Democrats before the vote, asserting that they don't believe in "legitimate defeat," and that they only want "activist judges" on the Court. Very classy stuff; no wonder he gets along so well with Donald Trump.

It is inconceivable that the Democrats, if they regain control of the Senate and the White House, are going to take this lying down. Though Minority Leader Chuck Schumer (D-NY), Speaker Nancy Pelosi (D-CA) & Co. have developed something of a reputation as shrinking violets when push comes to shove, their base is furious, and any hope they have of implementing their political program could be dashed upon the shoals of a 6-3 conservative SCOTUS majority. Further, as we also noted yesterday, Joe Biden has already committed to forming a bipartisan commission to study changes to how the Supreme Court is set up. That is what it looks like when a politician is slowly but surely dragging the Overton Window in his party's direction.

So, what might the Democrats do? We've covered most of the options in the last month or so, but here are the obvious ones in one space:

• What Court?: This is a short-term solution (or, perhaps, a medium-term solution if the Democrats fail to recapture the Senate and/or the White House). However, as we have noted many times, the Supreme Court commands no police or troops and has no enforcement powers. On many occasions, when their rulings have been too obviously political (or have been merely objectionable), the politicians have ignored them. Andrew Jackson and Abraham Lincoln are among the high-profile examples but this is actually a persistent dynamic of the American democracy. After all, what are all the abortion-limiting laws that have been adopted in the last decade? They are examples of politicians ignoring or pushing back against Roe v. Wade. Anyhow, imagine that the Supreme Court tries to order Pennsylvania to stop counting absentee ballots on Nov. 5. And then imagine that Gov. Tom Wolf (D-PA) says, "John Roberts has made his decision; now let him enforce it" and tells Secretary of the Commonwealth Kathy Boockvar (D) to keep counting. What, exactly, could the Supreme Court do? (Answer: Not much.)
  
  
• Reboot the Senate: Perhaps the "least" nuclear option, long-term, would be for the Democrats to reinstate the norms that kept this whole process more civil for many, many decades. That would include, at very least, reinstating the filibuster for most or all judicial picks. It might also include requiring actual filibustering (i.e., standing and reading the phone book without food or bathroom breaks). It would probably also include restoring the blue slips, which allowed senators to veto judicial nominees who would be serving in their home states.
  
  This may be the most kumbayah option available, but it's also extremely improbable. There is every reason to believe that Republicans would just switch the rules back once they regain a majority, and that they would likely abuse the filibuster while in the minority (since they did it before). Not only that but the Democratic base, as noted above, is out for blood, and so too are many of the Democratic senators. When asked about the return of some of these more genteel traditions, Sen. Mazie Hirono (D-HI) said "The rules have changed. Do I look stupid to you?" while Sen. Richard Blumenthal (D-CT) opined that the Democrats "ought to play complete hardball" on judges.
  
  
• Expand the Court: This approach, usually described as "court packing," is the one that has captured the hearts of much of the Democratic rank and file. And, as we have noted, the Blue Team would certainly have some cover for giving it a try, should they decide to do it. Beyond the obvious Republican machinations, including the wildly different (and seemingly hypocritical) handling of Merrick Garland versus Barrett, it is also the case that a Supreme Court designed for the needs of the 19th century is currently handling a 21st century caseload. There are legitimate, non-partisan arguments for adding more justices and chopping some of the overstuffed circuits (like the Ninth) into smaller pieces. With 15 justices there could be 15 circuits, one per justice (vs. the 12 current circuits).
  
  
• No More Lifetime Tenure: The Constitution says that federal judges, "both of the supreme and inferior Courts, shall hold their Offices during good Behaviour." That will make it pretty hard to impose term limits, absent a constitutional amendment. However, it is at least possible a mandatory retirement age might pass muster. It is even more likely that kicking a judge upwards, after they reach a certain age or length of service, would pass muster. If, say, Clarence Thomas was promoted to "Justice Emeritus" or was required to assume senior status, then he would still hold his office and would still draw a salary. He just wouldn't be participating in SCOTUS rulings any longer.
  
  
• Limit the Supreme Court's Jurisdiction: This may be the most likely option on the list. The Constitution very clearly grants the Supreme Court jurisdiction over a small percentage of cases (primarily those involving disputes between states, or those involving disputes with foreign countries). However, it also gives Congress the power to assign appellate jurisdiction in most other cases. That power has gone to the SCOTUS, pretty much by default, but Democrats could establish a new level of the federal court system, say, a Constitutional Court, to decide whether laws are constitutional. Its members could be chosen by the president from current appellate judges and would serve only a fixed term before being sent back to the appellate court. Senate confirmation would be needed, of course, and the Court should have an even number of members to avoid narrow 5-4 rulings. In the case of a tie, the Court would not issue a ruling and the status quo would be maintained. Or Congress could just assign that power to an already existing level of the federal court system (presumably, the D.C. court of appeals). The former approach would probably be preferable, so that decisions would be nationally binding, but it may be a bridge too far for some moderates. In any event, this approach would be entirely constitutional, would substantially defang the Supreme Court, and would come with much less political baggage than "court packing."

In any event, in case there was not already enough riding on the outcome of this election, add the future of the judicial branch to the list. (Z)

..And May Soon Be Mucking Around in the Election

Another day, another election-related decision from the Supreme Court. In the latest, the Court ruled 5-3 to overrule a lower-level federal judge who had ordered a six-day extension to Wisconsin's deadline for accepting absentee ballots. Readers will surely be stunned to learn that the five were the Court's five conservatives, while the three were the Court's three liberals.

Naturally, tea-leaf readers are looking for clues about what the Court might do should there be disputes after election season concludes next Tuesday. At very least, with the possible exception of Chief Justice John Roberts (who voted to uphold a state-level decision last week, but to overturn a federal decision this week), the justices appear to have abandoned the notion that administering elections is not the province of the federal courts. Beyond that, Justice Brett Kavanaugh's opinion in the Wisconsin decision emphasized the importance of a timely result, while warning that a dragged-out election could lead some politicians to claim "foul play." He did not mention anyone by name; perhaps he couldn't think of anyone specific that might describe. Meanwhile, Justice Elena Kagan's opinion argued that counting every vote should be the paramount goal, and that flexibility is particularly called for in the midst of a pandemic.

In short, it is abundantly clear that maximal voter participation is not the #1 goal of the Court's conservatives. Whatever their written reasoning, it has surely also occurred to Kavanaugh & Co. that having fewer votes works to the advantage of the Republican Party. It is similarly clear that maximal voter participation is absolutely the #1 goal of the Court's liberals. Again, whatever their written reasoning, it has surely also occurred to Kagan & Co. that having more votes works to the advantage of the Democratic Party. Obviously, the conservative position is the one likely to carry the day next week, should it come to that, since the seating of Amy Coney Barrett will just expand their majority (and will cancel out any of Roberts' "I'm just calling balls and strikes" maneuvering). That said, the six-person majority may tread lightly, since the worst case scenario would be to make a bunch of GOP-friendly rulings and then have the Democrats carry the Senate and White House anyhow. In that case, then Kavanaugh, Barrett, et al. will merely have thrown more fuel onto the "reform the Court" fire without achieving anything tangible. (Z)

Trump Thinks Media Should Not Cover COVID-19...

Johns Hopkins says the U.S. death toll from COVID-19 is now greater than 225,000, while Worldometers says it is now more than 230,000. Either way, the total is horrifying. And Donald Trump would prefer you be kept in the dark:

We have made tremendous progress with the China Virus, but the Fake News refuses to talk about it this close to the Election. COVID, COVID, COVID is being used by them, in total coordination, in order to change our great early election numbers.Should be an election law violation!

— Donald J. Trump (@realDonaldTrump) October 26, 2020

Once again, Trump demonstrates his low regard for the First Amendment. In fact, we wonder which one he holds in lower esteem: the first ten amendments to the Constitution, or the Ten Commandments. It is an interesting question.

In any event, it is hard to know how much of this tweet he really believes. Clearly, he does not actually think his administration has made "tremendous progress," since his own chief of staff, Mark Meadows, admitted defeat Sunday, conceding that "We are not going to control the pandemic." Similarly, if Trump really had a strong record on COVID-19, he would be calling the media to focus entirely on that subject, and not demanding that all COVID coverage be outlawed. In short, in two different ways, and for two straight days, the Trump administration has admitted that, when it comes to the pandemic, their response has been very poor. That's a strange closing pitch with Election Day less than a week away, but there it is. (Z)

...Probably Because He's an Autocrat...

Quite a few folks, including many of our readers, have described Donald Trump's approach to power in unflattering terms, describing him as a tyrant, or a fascist, or a dictator, or an autocrat. Appropriately for the day that Trump called for critical media outlets to be treated as criminals (see above), a new study gives some credence to the "he's an autocrat" faction (and, of course, "autocrat" is not far removed from "dictator," "fascist," or "tyrant".)

More specifically, the study—conducted by the V-Dem Institute at the University of Gothenburg in Sweden—concludes that while the Republican Party used to be fairly similar to center-right parties in Europe, it is now much more similar to authoritarian parties in Hungary, India, and Turkey. The authors point, in particular, to the modern-day GOP's willingness to exclude people from the democratic process, to its habit of demonizing its opponents, and to its embrace of violence as a political tool. They say that the Republicans are one of the most illiberal governing parties in the world, so much so that the U.S. is in danger of no longer being a democracy.

The other key point the study makes is that this is not a one-man show. That is to say, the Republican Party's autocratic veer began well before Donald Trump took over as leader. That said, the President certainly took advantage of the trend and also hastened its progression. And if the GOP gets thumped at the polls this year, the damage may not be easy to reverse (see below). (Z)

...Which Is Absolutely Killing the Republican Party

Donald Trump's authoritarian approach (see above) hits the bullseye with a certain type of voter: working-class, male, white, frustrated by changes in the social and political landscape. And so, it's no surprise that the heart and soul of his base is non-college-educated white men.

There is a problem here, however, and it's one that we (and others) have been pointing out for years, even before the Era of Trump (E.T.?). The demographic groups that Trump is playing to (and that Republicans before him, particularly George W. Bush, played to) are shrinking. A new analysis by The New York Times' Ford Fessenden and Lazaro Gamio lays out the problem in detail. To start, here is the lead graphic from their piece. It shows the breakdown of the national electorate:

As you can see, non-college whites were key for an aspiring president 40 years ago. But now, they are a minority whose numbers are trending rapidly downward. Meanwhile, the groups that are the backbone of the Democratic/Biden coalition had risen to be 61% of the electorate in 2018, and will be something like 65% this year.

In the key swing states, the demographic shift is particularly stark:

State	Trump 2016 Margin	Non-College Whites, 2016-20	College Whites/Minorities, 2016-20
Pennsylvania	+44,292	-431,000	+449,000
Wisconsin	+22,748	-48,000	+140,000
North Carolina	+173,315	-73,000	+524,000
Michigan	+10,704	-248,000	+381,000
Georgia	+211,141	-81,000	+542,000
Florida	+112,911	-359,000	+1,579,000
Arizona	+91,234	+45,000	+498,000
Iowa	+147,314	-58,000	+72,000

Outside of Iowa, the loss of likely Trump voters and/or the gain of likely Biden voters is more than enough to wipe out the President's margin of victory from 2016. It's not quite that simple, since there are undoubtedly more college-educated whites and minority voters who are pulling the lever for Trump than there are non-college whites pulling the lever for Biden. Still, this is the sort of table that should give Trump 2020 operatives indigestion.

Four years ago, Trump rode a barely viable coalition to a victory, largely because he drew—as psephologist Rachel Bitecofer put it—a straight flush. He might draw another straight flush this year, or he might get help from various sorts of dirty tricks. But the odds are not looking good for him, and once he's done—whether in 2021 or 2025—the Republican Party is going to reach a fork in the road. One branch leads to "reinventing the Party" and the other leads to "years spent wandering in the wilderness." Who knows which they will take? (Z)

Lou Dobbs Knows Who Is to Blame for the Trump Administration's Failures

Lou Dobbs was once one of CNN's most prominent voices, but as he revealed his propensity for conspiratorial thinking and unfounded accusations against Democrats, he was shown the door, eventually landing at Fox Business Network (a.k.a. the junior varsity). Naturally, he is an outspoken Donald Trump supporter, along the lines of a Sean Hannity or a Tucker Carlson.

With that said, Dobbs is a smart guy who got his degree at Harvard. That makes him a bit of an intellectual heavyweight compared to Hannity, who managed to flunk out of three different universities and never earned a degree. And it appears that Dobbs is therefore having just a bit more trouble absorbing the Kool-Aid than Hannity is. While the latter looks at the Trump presidency and sees nothing but an unqualified success, the former clearly has an awareness that not everything has come up roses for the President.

Anyhow, this appears to have created a bit of cognitive dissonance for Dobbs. On one hand, he sees Trump as a latter-day Sir Galahad, peerless and not subject to human weaknesses. On the other hand, there are the failures, from Charlottesville to Ukrainegate to COVID-19. And it would seem that Dobbs has resolved this contradiction thusly: He blames...Sen. Lindsey Graham (R-SC). Taking to the Fox Business airwaves, Dobbs encouraged both of his viewers to vote for someone other than Graham:

Graham has betrayed President Trump at almost every turn. He has betrayed the American people and his oath of office. He's done absolutely nothing to investigate Obamagate except to tell everyone, 'Stay tuned.' Time and time again, 'Stay tuned.' Sen. Graham needs to be tuned out in South Carolina.

Dobbs also reminded his viewers of past slurs that Trump has leveled against the Senator.

At very least, this outburst speaks to how very much the President's supporters were relying on a Comey-style October Surprise, and how disappointed they are that one is apparently not coming. However, we run this item because we wonder if it does not speak to another dynamic as well. There are a lot of voters who have turned Trump into a godlike "Dear Leader" who can do no wrong. At the same time, clearly much has gone wrong. Someone must be responsible, and if it's not Trump, then maybe it's his supporters and underlings who haven't done enough to help him. It would be nearly impossible to poll or to prove the existence of this dynamic, but maybe this explains why Trump is running ahead of incumbent Republican senators in states like South Carolina, Iowa, and Alaska. Perhaps there is some small percentage of voters that is so upset about the Trump administration's lack of accomplishments (no wall, no health care plan, no Hillary Clinton in prison, no Satan-worshiping pedophiles arrested, etc.) that they are going to withhold their votes from Republican senators (or representatives) to punish them. Even if they don't vote Democratic, that could be enough to allow, say, a Trump/Jaime Harrison result or a Trump/Theresa Greenfield result. (Z)

Six Reasons Not to Panic About the Election

Yesterday, we had a summary of a Politico item listing some of the many things that could go wrong with the election. Let us now summarize a counterpoint the site ran a couple of weeks ago under the headline "6 Reasons Not to Panic About the Election":

1. Presidents Don't Run Elections, States Do: Even if Donald Trump might want to interfere with election returns, it will not be easy for him to do so, since the process is so decentralized. Further, in contrast to the partisanship we see in Washington, most people charged with running elections are public servants first, partisans second. Of particular note, both the governor and the secretary of state in Michigan, Wisconsin, and Pennsylvania are Democrats. In North Carolina, both are Democrats but the secretary of state does not run the election there, a board of elections does. In Arizona, the governor is a Republican but the secretary of state is a Democrat.
   
   
2. It's Really Hard to Steal an Election: This is a point we've tried to make many times. Even if a corrupt party/campaign chooses their targets well, stealing a presidential election would require buy-in from a vast number of people who would all have to be willing to overlook flagrant violations of the law. It is doubtful the Trump campaign can find that many hard-core loyalists, much less deploy them in the correct fashion. And that is before we consider pushback from those who would oppose such maneuvering (say, for example, the governors of Democratic-controlled states).
   
   
3. Even with Presidential Encouragement, Voter Intimidation Is Illegal: The types of folks who might actually try to carry out Trump's suggestions about vote-monitoring are not, shall we say, the sharpest knives in the drawer. So, they are not likely to pull off a voter-intimidation campaign. And if they try, they are going to be up against poll workers and, quite likely, local and state law enforcement.
   
   
4. Public Expectations of How Long the Vote Might Take Have Already Shifted: There was a time when Donald Trump intended to use delayed results as "proof" of fraud. He should have kept that to himself, but remaining quiet is not his thing. Now, an overwhelming majority of Americans (about 70%) are aware that it could take a while, either due to record turnout or to pandemic-inspired absentee voting, and are ok with that.
   
   
5. The System Is More Prepared Than You Might Think for Challenges to Vote Counting: There is much concern, both among readers of this site and among the public at large, that judges (especially on the Supreme Court) and/or AG Bill Barr may try to flex their muscles and swing a few states in Donald Trump's direction. However, there has to be some plausible legal basis for such maneuvering. And most of the potential issues are being sorted out, one way or another, before the counting of ballots begins. Once we get to Nov. 4, the bar for Supreme Court involvement of any sort is high, and the bar that has to be cleared for them to overturn or invalidate votes is even higher. It is doubtful they want to waste whatever political capital they have left to reelect Donald Trump by fiat. Meanwhile, there is no legal angle for Barr to get involved at all.
   
   
6. Even the Electoral College Has (A Bit) Less Uncertainty Than Advertised: This is another point we've made several times, and that we will probably make again. The thought that Republican legislatures might decide to ignore the popular vote and award their state's electors to Trump is scary, but is clearly outside the bounds of the law and of past precedent. This sort of power grab just isn't viable.

Maybe this will put readers' minds at ease, maybe not. If nothing else, ask yourself this: If the Trump campaign actually had a viable trick to pull from its sleeve, would the President be flailing about as wildly and desperately as he has been for the last week-plus? (Z)

Today's Presidential Polls

As we wrote yesterday, Trump remains the favorite in Texas. However, he's in trouble in the must-have states of the "Midwest." (Z)

State	Biden	Trump	Start	End	Pollster
Florida	50%	48%	Oct 20	Oct 22	RMG Research
Georgia	47%	46%	Oct 14	Oct 23	U. of Georgia.
Massachusetts	64%	29%	Oct 14	Oct 21	YouGov
Maryland	58%	33%	Oct 19	Oct 24	Gonzales Research
Michigan	52%	42%	Oct 13	Oct 21	YouGov
Pennsylvania	50%	45%	Oct 20	Oct 26	Ipsos
Pennsylvania	52%	44%	Oct 13	Oct 21	YouGov
Texas	43%	47%	Oct 20	Oct 25	Siena Coll.
Texas	45%	50%	Oct 13	Oct 20	YouGov
Wisconsin	53%	44%	Oct 13	Oct 21	YouGov
Wisconsin	53%	44%	Oct 20	Oct 26	Ipsos

Click on a state name for a graph of its polling history.

Today's Senate Polls

Very few surprises here. If Perdue loses, it will of course be very difficult for the Republicans to hold the Senate. They would have to hold all the toss-up states, and would also need a near-miracle in Maine, Arizona, or Colorado. (Z)

State	Democrat	D %	Republican	R %	Start	End	Pollster
Alabama	Doug Jones*	41%	Tommy Tuberville	55%	Oct 21	Oct 23	Cygnal
Georgia	Jon Ossoff	46%	David Perdue*	45%	Oct 14	Oct 23	U. of Georgia.
Massachusetts	Ed Markey*	65%	Kevin O`Connor	26%	Oct 14	Oct 21	YouGov
Texas	Mary "MJ" Hegar	38%	John Cornyn*	48%	Oct 20	Oct 25	Siena Coll.
Texas	Mary "MJ" Hegar	42%	John Cornyn*	49%	Oct 13	Oct 20	YouGov

* Denotes incumbent

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