Biden Continues to Lead in the National Polls

There were 11 national polls yesterday. Here they are.

Pollster	Biden	Trump	Difference
CNN/SSRS	54%	42%	+12%
GBAO	53%	40%	+13%
IBD/TIPP	50%	45%	+5%
PRRI	55%	36%	+19%
Qriously	49%	39%	+10%
Rasmussen/Pulse	47%	48%	-1%
Redfield & Wilton	51%	41%	+10%
Rethink Priorities	51%	42%	+9%
Spry	48%	46%	+2%
USC Dornsife	54%	42%	+12%
YouGov	54%	43%	+11%
Average	51.5%	42.2%	+9.3%

We have long since stopped using Rasmussen polls, but FiveThirtyEight included this one in its list, so we included it in our list (but not in our database, since it is not a state poll). It's clearly off by about 10 points. With Rasmussen, Biden is up by an average of 9.3 points. Excluding Rasmussen his lead is 10.3 points.

But how stable is this lead? Real Clear Politics has a chart going back 3 months. Here it is:

We added the two purple lines at 43% and 49%. Why? Because they make it clear that Biden's lead in the national popular vote has been at least 6% for the past 3 months. The simulations Nate Silver & Co have done at FiveThirtyEight have shown that with a popular vote lead of 6%, the probability of Biden also winning the Electoral College is greater than 99%.

Trump's support is incredibly stable. It is never below 41% and never above 43.5%, a tiny band. Fundamentally, there are three groups whose support is completely unwavering, no matter how many lies he tells or how corrupt his administration is. First, there are the angry, resentful working-class white men who don't like the demographic and economic changes the country has undergone in the past decades. In the 1950s, someone with only a high school education could get a well-paid union job at a factory, raise a family on one income, and feel respected. Those days are gone and these men have definitely noticed it. They think that coastal elites look down on them as a basket of deplorables who cling to guns or religion. There is some truth to that perception. They also think that because Trump hates the people they hate, he will do something for them. So far he hasn't, but maybe in a second term he will.

Second we have the evangelicals. Mostly what they care about is banning abortion and gay rights, especially same-sex marriage. If put to a vote, they would probably make homosexuality a felony again, as it once was. As long as Trump consistently delivers conservative judges and justices who hold these views, he can do no wrong with them. Did Jesus spend his entire life preaching about the evils of abortion and same-sex marriage? Was that his main message? We'll check on it and get back to you (eventually).

Third, we have a group that is entirely rational in its unwavering support for Trump: Rich businessmen. What they want is lower taxes for the rich and fewer government regulations on businesses. That tax cut was very sweet. Thank you, Mr. President. If your factory produces some noxious byproduct as a result of its manufacturing process, why shouldn't you be able to dump it in the local river? After all, nobody but the government and the remaining spotted owls will even notice. This group is afraid that Joe Biden is weak and that Sen. Bernie Sanders (I-VT) and Rep. Alexandria Ocasio-Cortez (D-NY) are going to run the show and impose crushing taxes on them and their companies. They don't give a hoot about Roe v. Wade, since if they get their girlfriends pregnant, they can always fly to Canada to get an abortion there if need be. If a poor Black woman in Mississippi who was raped can't get one, well, that's her problem.

So it appears that if everyone who talked to the pollsters votes, Biden will win. There is always the possibility of "shy" Trump voters who won't talk to the pollsters, but we don't think that is likely to be a major factor. What could be much bigger is large numbers of votes being disqualified due to: (1) arriving after Election Day in states that don't allow that, (2) absentee ballots being thrown out due to signature, witness, or other issues, (3) ballots being invalidated due to nudity (naked ballots), (4) technical errors (74,000 ballots in Iowa were sent out incorrectly), (5) court orders to stop counting, (6) voter intimidation on Election Day, and (7) all the unknown unknowns. Still, with such a big lead and so many early votes in, barring a rather large October Surprise, Trump has a pretty steep hill to climb, even with help from Justice Amy Coney Barrett and her new colleagues.

However, one last thought: In the past 2 weeks, the trendline for Biden is down and for Trump is up. If Trump manages to pull it off after all, people will later look at this graph and say: "We should have seen it coming. The polls warned us." That said, a trend that took Biden from 52% to 50.5% with less than a week to go may not prove so important in the end. (V)

Early Voting Has Hit 51% of the 2016 Total Vote

In 2016, just under 139 million people voted in the presidential election, a turnout of 56%. This year, so far, over 75 million votes have been cast, more than half the entire total for 2016. The 2020 early voting totals have long since blown past the 2016 early voting total of 50 million. Here is a graph showing where the early vote was as of yesterday:

There is more early voting in 2020 for three reasons. First, both sides are far more motivated than in 2016. Second, due to the pandemic, large numbers of people do not want to show up on Election Day and stand in line for 4, 6, 8, or even more hours to vote, with the danger of catching COVID-19. Third, many states have made early voting, especially absentee voting, easier than ever before. Not only have many states adopted "no-excuse" absentee voting, but almost a dozen states are mailing every voter either a ballot or a ballot application, something that only a handful did in 2016.

Early voting is not uniform across the battleground states, however, per this chart:

As you can see, Texas will soon have more early votes cast than were cast total in the 2016 election. That may happen in Florida as well. In contrast, early voting is not so popular in New Hampshire. In the non-battleground states, there is also a large variance. In Montana, the early 2020 voting may surpass the total 2016 voting (possibly due to a competitive Senate race there), but in New York and Alabama, it has hardly taken hold at all.

The big question is whether early voters are just people who would normally have voted on Election Day or if they include a lot of new or infrequent voters. In states where early ballots can be matched against a voter file, it appears that 20% of the ballots have come from people who did not vote in 2016 in their current state. It isn't known if they chose not to vote in 2016, if they voted in a different state then, or were too young to vote in 2016. (V)

Anonymous Isn't Anymore

The author of the scathing 2018 New York Times op-ed by a high government official known only as "Anonymous" has come out of the closet. It is Miles Taylor, the former chief of staff at the Dept. of Homeland Security. In this post, Taylor reveals why he didn't sign his op-ed: He was afraid that if he did, Trump would just start calling him names and refuse to address the content of what he said. By being anonymous, he forced Trump to either address the content or say nothing. Trump addressed the content by tweeting: "TREASON?" In other words, to Trump, someone criticizing him is no different from a person giving military secrets to an enemy in time of war. Trump sees himself as Louis XIV reincarnated: "L'état, c'est moi."

In his post, Taylor says that he is a Republican and wanted Trump to succeed. That's why he came into the administration with John Kelly. But after 2½ years, he was so convinced that Trump was fatally flawed that he quit and wrote a book about Trump that became a New York Times bestseller. It gives an unvarnished portrait of Trump and his administration. Among other things, the book says that many of the people surrounding Trump saw the same things as he did, but were afraid to say anything about it. Taylor says that he has been vindicated because numerous other former Trump officials are now on record calling the President unhinged and worse.

Here are just two paragraphs from Taylor's new post, but they sum it up fairly well:

Trump has been exactly what we conservatives always said government should not be: expansive, wasteful, arbitrary, unpredictable, and prone to abuses of power. Worse still, as I've noted previously, he's waged an all-out assault on reason, preferring to enthrone emotion and impulse in the seat of government. The consequences have been calamitous, and if given four more years, he will push the limits of his power further than the "high crimes and misdemeanors" for which he was already impeached.

Trust me. We spent years trying to ameliorate Trump's poor decisions (often unsuccessfully), many of which will be back with a vengeance in a second term. Recall, this is the man who told us, "When somebody's president of the United States, the authority is total." I believe more than ever that Trump unbound will mean a nation undone—a continued downward slide into social acrimony, with the United States fading into the background of a world stage it once commanded, to say nothing of the damage to our democratic institutions.

In the end, Taylor implores Republicans to vote for Joe Biden, painful as that might be, because he believes Trump's dishonesty has torn the country apart and Biden's fundamental decency will bring it back together again, and that is more important than the fact that conservatives will not agree with Biden's agenda. (V)

Where Are the Candidates?

Presidential candidates always talk about how great things are and how they are not sweating any swing state, but their travels tell a lot about how things are really doing. The tactical decisions Donald Trump's team is making suggest they realize their situation is dire. The decisions Joe Biden's team is making suggest they think a rout is possible.

Trump has visited North Carolina seven times since the Republican National Convention in August. Yes, it's a swing state, but he keeps going into increasingly red rural areas. He is talking to people who should have already booked passage on the S.S. Trump, but there he is trying to sell himself to them.

Tomorrow, Joe Biden will be heading to Iowa, a small red state that Trump won by almost 10 points in 2016. Iowa? Not Michigan or Wisconsin or Pennsylvania? And also not Arizona, North Carolina, or Florida? The visit to Iowa suggests that Biden feels comfortable about all these states, in no small part because his enormous war chest has allowed him to wage a massive air war in all of them except Florida, where Michael Bloomberg has sunk $100 million, freeing Biden from having to spend there.

Biden also spent time in Georgia this week campaigning for Jon Ossoff and Raphael Warnock, who are contesting Senate seats there. Of course, just appearing in Georgia helps him as well, in this new swing state. Meanwhile, his wife was off in Maine stumping for Sara Gideon. Joe Biden hasn't been traveling as much as Trump, but all the states he has gone to have hot Senate races, including Arizona, Michigan, and North Carolina. The mere fact that the Bidens are busy campaigning for Democratic Senate candidates means either (1) they think the race for the White House is in the bag or (2) they are as cocky as Hillary Clinton was when she wasted time in Arizona, even though it wasn't a swing state in 2016. As we noted yesterday, we think the evidence strongly supports option #1.

Occasionally, a candidate will visit a state that he or she is not really contesting. Sen. Kamala Harris (D-CA) was recently in Texas. Polling says it is close, but Texas is probably still a bridge too far for the Democrats (although Charlie Cook has moved it to "toss-up"). So what was Harris doing there? She was trying to reassure Texans that the switch away from oil would take decades and not put them out of work in 2021. But more important, she was campaigning for Democrats running for the Texas House. If the Democrats can flip the nine Texas House districts where Beto O'Rourke won a majority in 2018, they can block a gerrymander of Texas in the U.S. house for 10 years. Yesterday, she was in Arizona, another state that the Democrats think they can wrest from Trump. Again, she wasn't in the "Midwest," so it looks like Biden thinks he's nailed that down already.

The other running mate, Mike Pence, has been campaigning in Minnesota, a state that the GOP would love to flip. It's unlikely, but if you don't show up, you probably won't win. Hillary Clinton learned that the hard way in 2016 when she barely lost Wisconsin. If she had gone to the University of Wisconsin just once, with Bernie Sanders in tow, she might have won the Badger State. (V)

Democrats Are Now with Trump

Donald Trump has been telling people not to vote by mail all year long. Eventually, the Democrats got the message. Now they are also telling people not to mail in their ballots, albeit for a different reason. The Democrats know that Postmaster General Louis DeJoy, a major Trump donor, has slowed the USPS down so that any ballot mailed now won't be delivered on time and will be thrown out. So they are telling the voters who already have an absentee ballot in hand to personally bring it to the local elections office or vote in person early if possible. Otherwise, vote on Election Day.

The Democrats expect that the Supreme Court will make more decisions this week prohibiting states from counting ballots that arrive after Election Day, even if they are postmarked well before it. However, they got a pleasant surprise on that front on Wednesday, when the Court sustained a decision made by the North Carolina Board of Elections to count absentee ballots received up to nine days after the election, as long as they are postmarked by Nov. 3. What might happen in similar pending cases is anyone's guess. Nonetheless, Democratic governors are urging voters to bring their ballots to drop boxes or election offices or vote in person, but in any case, not to use the mail. Donald Trump is surely proud to know they are now fans of his advice. (V)

A New Front in the Voting Wars: The Order of Counting Ballots

Just when you thought nothing else about the election could be politicized, a new front has been opened: the order in which ballots are counted. Here's the point. Donald Trump would love to run up a big score on Election Night so he can claim victory and tell all the states to stop counting because he won and it's over. A complication is that the majority of Democrats are going to vote by absentee ballot and the majority of Republicans are going to vote in person on Election Day. A few states, like Florida and North Carolina, start counting the absentee ballots weeks before Election Day, so this issue doesn't come up there. But other states, like Pennsylvania, don't start counting absentee ballots until Election Day.

Pennsylvania has a choice to make. Should it count the absentee ballots first, thus giving the Democrats a big lead initially? Or should it count the ballots from Election Day voters first, thus giving the Republicans an initial lead? It looks like it will be a split decision, with some counties going for the absentee ballots first and others going for in-person ballots first. In Philadelphia and the surrounding area, counting of the absentee ballots will begin at 7 a.m. sharp on Election Day. Erie and Cumberland counties will get to them the next day. Since counties aren't allowed to announce any results until after 8 p.m. on Election Day, it will be impossible to compare the results from different counties on Election Night. Also, some counties, like Erie (which Trump won in 2016) plan to stop counting at 2 a.m. on Nov. 4 and send the workers home. Counting will begin again in the morning. Cumberland County, also a Trump stronghold, won't even begin counting the absentee ballots until the morning of Nov. 4.

The upshot of this is that the vote totals in Pennsylvania and Wisconsin, which also doesn't allow counting before Election Day, will be fragmentary and difficult to interpret because some counties will be reporting absentee ballots first and others will be reporting Election Day in-person votes first. Comparing results between 2016 and 2020 may be like comparing apples to pineapples. It is very unlikely that there will be any clarity on Election Night how Pennsylvania and Wisconsin will go.

However, there are three very important states that do allow early counting: Arizona, Florida, and North Carolina. If these are all blowouts, one way or the other, that will give a big clue as to the final result. But if they are cliffhangers, we will have to wait for Pennsylvania and Wisconsin to get the job done. (V)

Overseas Military Ballots Could Be Crucial in Florida

If the presidential election in Florida is close, as it often is, the deciding factor could be absentee ballots from service members deployed overseas. In 2016, one out of five overseas military ballots was in Florida, for a total of over 50,000.

Florida has many military bases and no state income tax, so many service members who were assigned there claim the state as their permanent address and thus are allowed to vote there. This could have serious implications for when the race is called. In Florida (and some other states) military voters overseas (and usually American civilians overseas as well) have different deadlines for getting their ballots in. Florida's deadline is Nov. 13 for arrival of the ballots. This means that if the election is close, the results won't be known until after Nov. 13, to allow the overseas ballots to arrive and be counted. In 2000, George W. Bush won Florida by 537 votes, so 50,000 uncounted ballots could matter a lot.

Other states have different deadlines. In 2016, there were about 20,000 votes from Texas service members overseas. The Texas deadline this year is Nov. 9. North Carolina had over 7,000 military votes in 2016 and has a deadline this year of Nov. 12. (V)

Whose Fault Is It?

The big question in the endless negotiations between Speaker Nancy Pelosi (D-CA) and Treasury Secretary Steven Mnuchin was never how much money would be allocated for a new coronavirus relief bill, but who would get the blame when there was no bill. Now that the Senate has recessed, there will definitely be no bill before Election Day and probably not before Inauguration Day (although a bill in a lame-duck session of Congress after the election is at least conceivable). So who gets the blame? A Politico/Morning Consult poll sheds some light on this question.

Morning Consult split the sample into two groups. One group was asked to blame either the Republicans and Donald Trump or the Democrats. Here, 45% blamed the Republicans and Trump and 40% blamed the Democrats. The rest didn't know. In this sample, 65% of the Republicans blamed the Democrats and 23% blamed the Republicans. Meanwhile, 71% of the Democrats blamed the red team and only 17% blamed the congressional Democrats.

The other group was asked to assign the blame to either (1) congressional Republicans, (2) congressional Democrats, or (3) Donald Trump. So here three choices were available, not just two. The breakdown was 25% blamed congressional Republicans, 19% blamed Trump personally, and 41% blamed congressional Democrats. The rest didn't know. Since 25% + 19% = 44%, awfully close to the 45% in the first sample, the conclusion is that by a small margin, the Republicans get the blame and more of it goes to the congressional Republicans than to the President. But the results are fairly partisan and largely predictable: Democrats blame the Republicans, Republicans blame the Democrats, and 15% don't pay attention to politics and don't know what is going on. (V)

Senate Rundown

Not only is the White House hotly contested, but so is control of the Senate. A Biden White House with a Republican Senate or a Trump White House with a Democratic Senate will be total and complete gridlock and probably wouldn't even be able to approve a cabinet or the federal budget. The battle for the Senate is lower profile, however, because it is distributed over perhaps a dozen competitive races.

Our Senate tipping-point page shows the Senate battle most clearly. Here is the middle part as of today:

State	Seats	Democrat	Republican	Lead	Dem seats	GOP seats
Illinois	1	53%	43%	10%	45	56
Georgia-special	1	51%	41%	10%	46	55
Minnesota	1	50%	43%	7%	47	54
Michigan	1	50%	43%	7%	48	53
Arizona	1	50%	43%	7%	49	52
Maine	1	47%	43%	4%	50	51
North Carolina	1	47%	44%	3%	51	50
Iowa	1	47%	45%	2%	52	49
Georgia	1	48%	46%	2%	53	48
Montana	1	48%	47%	1%	54	47
South Carolina	1	47%	49%	2%	55	46
Kansas	1	43%	45%	2%	56	45
Alaska	1	41%	44%	3%	57	44
Texas	1	40%	47%	7%	58	43
Mississippi	1	44%	52%	8%	59	42
Kentucky	1	41%	51%	10%	60	41

The table shows the current Senate races sorted with the biggest Democratic leads on top (in blue) and the biggest Republican leads on the bottom (in red). If the Democrats win all the seats down to and including Maine, they will have exactly 50 seats in the new Senate. If they also win in North Carolina, Iowa, Georgia, and Montana, where they are currently leading (indicated by the light blue color), they will get to 54 seats. If they also win South Carolina, Kansas, and Alaska (where the Republican is currently ahead but not outside the margin of error) in a blue tsunami, they could get to 57. Getting to a filibuster-proof 60 would require winning Texas and Mississippi and Kentucky, all of which seem very unlikely.

Put somewhat differently, if Kamala Harris is elected president of the Senate, the Democrats could lose North Carolina, Iowa, Georgia, and Montana, and still control the Senate. However, we note that the Georgia special election is not in the bag. It will be determined by a runoff on Jan. 5, 2021. Getting Democrats to the polls a second time is very difficult. Of course if control of the Senate depends on that race, it will be a real humdinger.

To see how the Republicans could retain control in a Trump administration, read up from the bottom until you get to 50 seats in the rightmost column. They would have to win all the seats where they are currently leading, shown in red, plus Montana, Georgia, Iowa, and North Carolina. To get an absolute majority, they would also need Maine. In a red wave, they might be able to pull it off, but without a red wave, it doesn't seem very likely at the moment. (V)

Schumer's Relationship with McConnell Is in Tatters

After a contentious battle to get Amy Coney Barrett onto the Supreme Court before the election, the relationship between Senate Minority Leader Chuck Schumer (D-NY) and Senate Majority Leader Mitch McConnell (R-KY) is completely toxic. Schumer said the day of the vote would go down as one of the darkest days in the 231-year history of the Senate.

With the once-cordial Senate now torn asunder along partisan lines, it raises the question about what will happen if the Democrats capture the upper chamber? Will they work politely with the minority party? Or will they say "screw you" and just ram their agenda through? Schumer gave a hint of this when earlier this week he told McConnell: "The next time the American people give Democrats a majority in this chamber, you will have forfeited the right to tell us how to run that majority. I know you think that this will eventually blow over. But you are wrong." (English translation: "The filibuster is as dead as the dodo.")

And the rift is deeper than just policy. The two leaders now really despise each other. McConnell called Schumer's allegations of impropriety "outlandish" and "utterly absurd." Schumer said that McConnell's speech was "very defensive." They are not going to work together on anything come January. If the Democrats take charge, the Senate will become like the House, where the majority leader does whatever he or she wants to, without asking the minority for its opinion—on anything.

Political activists on both sides are egging them on. Democrats have a long wish list of things they want and which they know McConnell will oppose. Their attitude is just change the rules and ram them through without taking the minority's concerns into account at all. Republican activists want McConnell to use every tool he has at his disposal to block Schumer on everything. The Senate used to be a clubby place where the senators would give opposing speeches all day and then go out for a drink together at 5 p.m. Those days are gone, probably forever. It is all-out war in the Senate for the foreseeable future. (V)

Whither the Supreme Court?

A lot of Democrats are champing at the bit to expand the Supreme Court if they win all the marbles in November. Joe Biden doesn't want to state an opinion on the matter yet (possibly because he wants to see how partisan the Court is on the upcoming election cases). Instead of taking a position, he said he would form a commission to study the problem—that is, he kicked the can down the road. Despite digital everything these days, the world is not entirely binary and the options aren't just "pack" and "don't pack." The New York Times got eight people to write op-eds on the subject, briefly summarized as follows:

• How we got here (by Emily Bazelon): The Constitution doesn't give the Supreme Court the power to throw out laws duly passed by Congress. The justices simply did it in 1803 in Marbury v. Madison and got away with it—mostly. From time to time though, the elected branches have smacked it down. The most famous time was in 1832 when Andrew Jackson didn't like a decision concerning whether Georgia could apply its laws to Cherokee lands in Georgia and said: "John Marshall has made his decision, now let him enforce it." After the Civil War, when the Republicans in Congress were concerned that the Court would interfere with its Reconstruction plans, it stripped the Court of jurisdiction over Reconstruction and increased the number of justices. The message here is that Democrats could live with a lopsided Supreme Court by stripping it of power and/or ignoring it from time to time.
  
  

  Court appointments weren't always as melodramatic as they are now. On June 25, 1941, FDR nominated the junior senator from South Carolina, James Byrnes, to the Supreme Court. The Senate confirmed him the same day, even though Byrnes had never gone to law school (he was self-taught and had passed the bar exam, however). Byrnes didn't especially like the job, and quit after 14 months. We're going to go out on a limb here and make a prediction: Justice Amy Coney Barrett will not resign after 14 months. Even if she doesn't like the job (which requires her to go open the door when someone knocks), she will stay on at least 2 years and maybe quite a bit longer.
  

• Create a new court (by Kent Greenfield): Greenfield, who clerked for the Justice David Souter notes that the system is out of whack. Sixteen of the last 20 justices were picked by Republican presidents, even though Democratic presidential candidates have won the popular vote in six of the last seven elections and will probably make it seven out of eight this year. His solution is novel and quite easy. Art. III of the Constitution starts with:

  The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

  Section 2 contains this clause:

  In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. (our italics.)

  Greenfield proposes that Congress create a new court, the Constitutional Court, inserted between the appeals courts and the Supreme Court. It would take all appeals from the appellate courts relating to constitutional issues (but not, say, cases about patent law or water rights). Using the power vested in Congress by the Constitution to strip the Supreme Court of part of its appellate jurisdiction (see the italized words above), Congress could pass a law stating that the Supreme Court has no authority to decide constitutional issues, so there would be no appeal from the Constitutional Court. Its word would be final on constitutional law.
  
  Greenfield further proposes that the new court should have eight members, to prevent narrow decisions (e.g., 4-3). In the event of a tie, the status quo would remain, the same as when the Supreme Court deadlocks. Then the lower court ruling holds (but only for its jurisdiction). Congress could make up any rules it wanted to for populating the Constitutional Court. For example, presidents could be required to nominate only sitting appellate judges with at least 10 years on the appellate bench (to prevent them from quickly naming a new appellate judge and then immediately promoting him or her). The selected judge (with consent of the Senate) would be elevated to the Constitutional Court for a fixed term, say 8 years. Then he or she would be sent back to the appellate court after the term, thus not running afoul of the lifetime appointments clause. The terms of the eight justices could be staggered so that each year in the summer recess, the president got one appointment. In this way, a two-term president could remake the entire court. But more importantly, if supporters of the other party didn't like what the Constitutional Court did, there would be a remedy: Elect a president they liked for two terms. In this way the Constitutional Court would have some freedom, but couldn't get too far out of sync with the country.
  
  
• Give justices term limits (by Steven Calabresi): Much of the current contentiousness relating to the Court is that appointees can be expected to serve 30, 40, maybe 50 years. Calabresi's solution is a constitutional amendment limiting justices to a single term of, say, 18 years. No other major democracy gives the judges on its highest court lifetime tenure and neither do 49 of the 50 states. Also an issue here is what happens if a justice who is 80 or 90 begins to lose it and refuses to resign. Unless the justice has committed a crime, he or she can't be impeached, and having Alzheimer's disease is not a crime. Calabresi's point is that 80 or 90 year olds don't belong on the Court at all. If presidents continued to pick people around 50, with an 18-year term they could serve until 68 and then join a law-school faculty, write a book, go fishing, or whatever. An alternative way to achieve the same goal would be an amendment requiring mandatory retirement at 70.
  
  
• Don't Let the Court Choose Its Own Cases (by Melody Wang): If the Supreme Court wants to strike down or cripple Roe v. Wade, it will need a case relating to abortion to take up, preferably one that makes it clear why they struck it down. How about a case in which a state banned frivolous abortions and a woman wanted a late term abortion because genetic testing revealed that the baby would have brown eyes and she wanted a baby with blue eyes? The Court could rule that no, the woman could not abort the baby because she wants one with blue eyes. That would open the door to endless new state laws putting increasing restrictions on abortions until Roe was de facto gone. The ability to determine which of the thousands of cases appealed to the Supreme Court every year get heard is an enormous power, which the Court aggressively uses to shape public policy. For example, if the Court wants to hamstring unions, it will look for a case in which a union pushed the envelope in some way and use that as a vehicle to cripple all unions in general. Wang wants to take the power to cherry pick cases away from the Court.
  
  For its first 100 years, the Supreme Court took every case appealed to it. Only in 1925 did Congress give it the power to pick and choose its cases. What Congress gives, Congress can take away. Wang's proposal is that a randomly selected panel of appellate judges would determine which cases were worthy of a Supreme Court review. So even if an activist Supreme Court was hell-bent on overturning Roe or some union case, if the panel saw those as settled law it wouldn't put any relevant cases on the docket. This proposal would stablize the judiciary and prevent the Supreme Court from acting like a mini-legislature in a more fundamental way than expanding the Court would. Expanding the Court wouldn't rein in judicial activism, it would simply give Democrats results they liked—until the Republicans expanded it again.
  
  
• Threaten to Pack the Courts (by Aaron Tang): FDR didn't pack the Court. He didn't have to. In 1937, FDR proposed adding six new justices. Justice Owen Roberts, who opposed all of the New Deal, suddenly got an epiphany: He was going to spend the rest of his professional life in a hostile work environment in which he would be strongly opposed by six new young colleagues. He didn't like that vision and suddenly got with Roosevelt's program.
  
  Suppose the House passed a bill increasing the Court to 15 justices and sent it over to the Senate. If the Democrats take the Senate, the Senate Judiciary Committee could approve it along party lines. Then Majority leader Chuck Schumer (D-NY) could say: "Even though I have the votes, I'm not going to bring it up quite yet. I want to see how the cases currently before the Court are decided before making a decision about bringing it to a floor vote." Justices read the newspapers. Schumer would have just dared them to make decisions he doesn't like and made it crystal clear what the consequences will be if they do. The justices will probably get the message.
  
  
• Pack the courts (by Larry Kramer): "He who lives by the sword shall die by the sword." Or maybe: "What's good for the goose is good for the gander." Or: "If it is legal, we can do it." Kramer (the former Stanford Law dean, and not the prominent LGBTQ activist who passed away six months ago) says that the Republicans not once, but twice, violated all norms of decency, so now it is time to play by their rules and ignore their faux outrage. This would be an outwardly political act made in response to two of their outwardly political acts.
  
  Yet another approach would be to create the position of justice emeritus or senior status and let older justices continue to draw a salary and eat in the Court's cafeteria, just not vote on cases.
  
  
• Expand the lower courts (by Leah Litman): The vast majority of cases never make it to the Supreme Court. The appeals courts get 50,000 cases a year and the Supreme Court takes fewer than 100. By expanding the number of district judges and appeals judges, the Democrats could make sure that large numbers of cases wouldn't be decided by the conservative judges Donald Trump appointed. The appointments could also reflect the diversity that is now America. Also, this would provide a large testing ground for future appeals court judges.
  
  
• Keep the courts the same (by Randy Barnett): If the Democrats expand the Supreme Court just because they can, then the next time the Republicans are in power they will do it as well, there will be no end to it, and the Court will lose all its legitimacy. It's not worth it. The U.S. will soon become Venezuela or Poland.
  

Another option not discussed by any of the authors is to promote all 180 appellate judges to the Supreme Court and select a random panel of 9 of them to handle each case.

If the Democrats really, really want to play hardball, they could also hold hearings in the House as a prelude to potentially impeaching Justice Brett Kavanaugh for lying to Congress about whether he sexually assaulted Christine Blasey Ford while in high school. The issue wouldn't be the assault, but lying to the Senate about it, which is a felony. Ford claims to have dozens of witnesses she told about the incident in real time. If they all got extensive speaking time at a hearing in the House and a subsequent trial in the Senate, it would put the Republican senators up in 2022 in a bind. If the public overwhelmingly came to believe that Kavanaugh lied to the Senate, there could possibly be a 2/3 majority to convict him and remove him from the Court. Alternatively, Republican senators up in 2022 would have some explaining to do about their vote to acquit. (V)

Today's Presidential Polls

There is a lot more blue in the second column than there is red in the third column. That's not a good sign for Donald Trump. Winning a commanding victory in Arkansas and a decent victory in Montana and South Carolina isn't something to base your hopes on. Florida is going to be close, but it is better to be 2-3 points ahead there than 2-3 points behind. Besides, winning by 2 points in Florida is considered a landslide. North Carolina looks like it is close. If so, we won't have a clear decision on Election Night. (V)

State	Biden	Trump	Start	End	Pollster
Arkansas	32%	65%	Oct 09	Oct 21	U. of Arkansas
Arizona	48%	46%	Oct 21	Oct 27	Ipsos
Arizona	49%	43%	Oct 22	Oct 25	The Justice Collaborative Inst.
Arizona	50%	45%	Oct 17	Oct 25	Latino Decisions
Florida	49%	46%	Oct 17	Oct 25	Latino Decisions
Florida	49%	47%	Oct 21	Oct 27	Ipsos
Georgia	50%	46%	Oct 23	Oct 27	Monmouth U.
Maine	51%	38%	Oct 21	Oct 25	Colby Coll.
Michigan	49%	41%	Oct 23	Oct 26	Siena Coll.
Michigan	51%	44%	Oct 20	Oct 25	Langer Research
Minnesota	47%	42%	Oct 23	Oct 27	SurveyUSA
Montana	45%	52%	Oct 19	Oct 24	Montana State U.
North Carolina	47%	46%	Oct 22	Oct 25	Harper Polling
Pennsylvania	50%	45%	Oct 17	Oct 25	Latino Decisions
Pennsylvania	51%	45%	Oct 25	Oct 27	RMG Research
South Carolina	44%	52%	Oct 24	Oct 25	East Carolina U.
Texas	46%	49%	Oct 17	Oct 25	Latino Decisions
Virginia	53%	41%	Oct 15	Oct 27	Christopher Newport U.
Wisconsin	48%	43%	Oct 21	Oct 25	Marquette Law School
Wisconsin	57%	40%	Oct 20	Oct 25	Langer Research

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

Today's Senate Polls

Also here, a lot more blue in the second column than red in the third one. Cal Cunningham's lead is down from what it was, and it's his own fault, of course. Still, he is slightly ahead, despite the scandal. A very encouraging sign for the Democrats is Theresa Greenfield's lead in Iowa. At first, it looked liked Joni Ernst would keep her seat easily. Now, not so much. But if Ernst loses, she can always go back home and castrate some more hogs. She's really good at it. (V)

State	Democrat	D %	Republican	R %	Start	End	Pollster
Arizona	Mark Kelly	50%	Martha McSally*	40%	Oct 22	Oct 25	The Justice Collaborative Inst.
Arizona	Mark Kelly	51%	Martha McSally*	39%	Oct 17	Oct 25	Latino Decisions
Arizona	Mark Kelly	51%	Martha McSally*	44%	Oct 21	Oct 27	Ipsos
Georgia	Jon Ossoff	49%	David Perdue*	47%	Oct 23	Oct 27	Monmouth U.
Georgia-special	Raphael Warnock	51%	Kelly Loeffler*	45%	Oct 23	Oct 27	Monmouth U.
Iowa	Theresa Greenfield	51%	Joni Ernst*	45%	Oct 21	Oct 24	RABA Research
Maine	Sara Gideon	47%	Susan Collins*	43%	Oct 21	Oct 25	Colby Coll.
Michigan	Gary Peters*	49%	John James	41%	Oct 23	Oct 26	Siena Coll.
Michigan	Gary Peters*	52%	John James	46%	Oct 20	Oct 25	Langer Research
Minnesota	Tina Smith*	45%	Jason Lewis	42%	Oct 23	Oct 27	SurveyUSA
Montana	Steve Bullock	48%	Steve Daines*	47%	Oct 19	Oct 24	Montana State U.
North Carolina	Cal Cunningham	46%	Thom Tillis*	43%	Oct 22	Oct 25	Harper Polling
North Carolina	Cal Cunningham	48%	Thom Tillis*	45%	Oct 23	Oct 26	SurveyUSA
North Carolina	Cal Cunningham	49%	Thom Tillis*	42%	Oct 24	Oct 26	RMG Research
South Carolina	Jaime Harrison	47%	Lindsey Graham*	49%	Oct 24	Oct 25	East Carolina U.
Texas	Mary Hegar	40%	John Cornyn*	45%	Oct 17	Oct 25	Latino Decisions
Virginia	Mark Warner*	57%	Daniel Gade	37%	Oct 15	Oct 27	Christopher Newport U.

* Denotes incumbent

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