The Supreme Court Maneuvering Is in Full Swing

The story of the day, the week, and probably the month continues to be Ruth Bader Ginsburg and her replacement on the Supreme Court. Anybody who is surprised was presumably living under a rock during the Brett Kavanaugh saga.

To start, it was announced that Ginsburg's remains will lie in repose in the Supreme Court building on Wednesday and Thursday before lying in state in the Capitol on Friday. She is the first woman to receive either honor. As the former is generally extended only to Supreme Court justices, and the latter is generally extended only to functionaries of the federal government (which means that private citizen Rosa Parks lay in repose, and not in state), it is a reminder of how very recently women have gained access to the corridors of power.

Meanwhile, Donald Trump is moving rapidly to identify his nominee to replace Ginsburg. The President interviewed frontrunner Amy Coney Barrett on Monday, and promised that he would have a decision no later than Saturday. The candidate seen as the most likely alternative, if it is not Barrett, is Floridian and Cuban-American Barbara Lagoa. Florida Republicans are pushing hard for her, promising that the pick would deliver the Sunshine State in November.

Trump, of course, cares about only one thing, and that is which candidate will help him the most with voters. The Barrett-Lagoa dichotomy is an interesting one; the former would excite the base at large, the latter could be the tipping point in a must-have state for the President. Of course, that dichotomy somewhat implies that whomever Trump chooses, the "losing" faction will be disappointed, and could express their pique on Election Day. It is also the case that social conservatives are already griping that neither of the two leading women are right-wing enough for their tastes. Barrett, a devout Catholic and mother of seven children, is undoubtedly against abortion, but that does not automatically mean that she is also against gay rights, gun control, and the ACA. Lagoa is the daughter of Cuban immigrants. How would she vote on issues like immigration and citizenship, not to mention unions and campaign finance law? Do either of them have the entire conservative package? It might be wise for Trump to hold off on making a pick, so as to avoid stepping on any toes, and to save vulnerable GOP senators from having to take an unpopular stand. Of course, the next time the President shows this sort of long-term patience will be the first time.

Just as inevitable as Trump jumping the gun is the fact that "statesman Trump" has disappeared, and "vulgar reality TV host Trump" has resurfaced. As we and others noted, he said all the right things upon learning of Ginsburg's death on Friday, paying tribute to her long and successful career. However, anyone and everyone predicted it wouldn't last. By Saturday, he was leading crowds in chants of "Fill the seat!," which is a little icky so close to the Justice's demise. And on Monday, Trump claimed—without a shred of evidence, of course—that Congressional Democrats fabricated Ginsburg's dying wish that she not be replaced until the next presidential term. That means the President of the United States has just publicly called the Justice's grieving granddaughter Clara Spera a liar.

Meanwhile Trump's "partner," Senate Majority Leader Mitch McConnell (R-KY), appears to have the votes he needs to move forward with a confirmation before the election. He's being coy about whether he will actually do it, but it would be a little odd to whip all those votes for his own amusement. McConnell, of course, is no dummy, and certainly knows that he's putting some members of his caucus in a very bad position, while also threatening his own job. Our guess is that he's taken the lay of the land and concluded that the Senate is nearly lost anyhow, and increasing the odds of that by 10% or 20% is worth it in exchange for a conservative hammerlock on the Court.

On the other side of the aisle, things are still taking shape. Many Democrats, particularly those in the progressive wing, are screaming bloody murder, and want Joe Biden and the other Democratic officeholders to take off the kid gloves and fight fire with fire. Biden, for his part, was taking a cautious tack as of Monday morning, calling for bipartisanship and compromise. But by Monday afternoon, he was refusing to answer questions about whether he supports Court-packing or not (something he previously said he opposed). That's a pretty big shift in...three hours or so. Maybe he is soon going to go all-in on court packing, and say he was won over to that position by the members of his party. That's a move that Biden watched Barack Obama execute more than once, most obviously when #44 came out in support of gay marriage in the midst of the 2012 campaign.

And finally, we try to keep tabs on the Court-reform-related ideas that are flying around the Internet. Christopher Jon Sprigman, writing for Slate, proposes that Court-packing is not only politically difficult and risky, it's also unnecessary. He directs our attention to Article III, Section 2 of the Constitution, which reads:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a 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.

In other words, there is a constitutional basis for significantly clipping the Supreme Court's wings when it comes to judicial review. And since judicial review itself has no constitutional basis, having been claimed by John Marshall by fiat in Marbury v. Madison, Congress would surely triumph if they tried it. This is not the sort of thing that would excite the Democratic base, but if doing it ends up saving the things that liberals care about (Obamacare, abortion rights, voting rights legislation, etc.), then the base will presumably come around. (Z)

Another Day, Another Adverse Ruling for the Trump Administration

As long as we are talking about the courts, Donald Trump and Postmaster General Louis DeJoy suffered another setback on Monday. Judge Stanley Bastian (Ninth Circuit; Eastern Washington) poked DeJoy in the left eye last week, and yesterday, Judge Victor Marrero (Second Circuit; Southern New York) poked him in the right eye.

Like Bastian, Marrero pulled no punches in his ruling, declaring that "While the court has no doubts that the Postal Service's workforce comprises hardworking and dedicated public servants, multiple managerial failures have undermined the postal employees' ability to fulfill their vital mission." He imposed several specific orders, including treating all ballots as first-class mail (something that Bastian also ordered), and paying for necessary overtime in the weeks surrounding the election. Marrero also said he wants a detailed plan about how the USPS will guarantee that election-related mail is delivered on time, and if he doesn't get that plan by Friday, he'll impose his own plan.

Perhaps we are being naive, but it certainly appears that Trump and DeJoy have lost the battle and the war here. DeJoy moved so early and with such ham-handed aggression that the USPS is now being watched by every Democratic officeholder in the nation, an army of Democratic lawyers, a handful of cranky federal judges, and the actual employees of the USPS. Given the clumsy way the Postmaster General tried to circumvent campaign finance laws (something that may well land him in the hoosegow eventually), we just don't see that he has the wherewithal to maneuver any further with that much scrutiny of his every move. (Z)

How Low Will Barr Go?

Remaining with the twin subjects of the law and Donald Trump's henchmen, AG Bill Barr unveiled his latest toadyism on Monday. On direct orders from the President, the Justice Department formally declared that the cities of New York, Seattle, and Portland are "anarchy" jurisdictions. "We cannot allow federal tax dollars to be wasted when the safety of the citizenry hangs in the balance," Barr said in a statement. "It is my hope that the cities identified by the Department of Justice today will reverse course and become serious about performing the basic function of government and start protecting their own citizens."

This is so transparent that it cannot be taken seriously. Ostensibly, it is pretext to withholding federal funds (per Barr's statement) and/or imposing martial law. However, there is zero chance that declaring New York City to be in anarchy, just 'cause, is going to stand up to even a cursory legal challenge. Further, one cannot help but notice that other cities that have had recent violence, namely St. Paul and Kenosha, somehow didn't make the list. Hmmm...what is it that separates Washington/Oregon/New York on one hand and Minnesota/Wisconsin on the other? (Hint: The answer is two words, and rhymes with "wing tates.") If Donald Trump does get reelected, Democrats in Congress may have no choice but to impeach Barr, who continues to abuse the powers of his office six ways to Sunday. (Z)

Trump Gone Wild

Bill Barr does not have a monopoly on outlandishness, of course, as an increasingly desperate Donald Trump casts about for anything that might get him a few more votes in November. There were three big stories on this front in the last several days.

To start, the President is quite pleased with his efforts to strike back at the Chinese-owned TikTok, having forced the sale of 20% of that company to American business interests. And this weekend, trying to add a little whipped cream to his cake, the President claimed that $5 billion would be set aside to pay for students to learn the "real" history of the United States. You know, the one where George Washington won the Revolutionary War by cleverly occupying all of the nation's airports. Naturally, nobody involved in the TikTok deal had heard anything about this, and they aren't exactly interested in writing a check for $5 billion because it would give the President the warm fuzzies. Meanwhile, anyone who has read this site for more than a week must surely know how historian (Z) feels about describing any narrative of past events as the "real" history.

The administration also unveiled new sanctions on Iran on Monday. The President, of course, has yet to articulate a clear vision for exactly what he hopes to accomplish with that nation, beyond "the opposite of whatever Obama did." In any event, the people who know about these things (other nations' diplomats, experts in international law) say that the sanctions are not going to be effective, that no other nation will support them, and that they are almost certainly illegal. As with so many Trump administration initiatives, this is clearly for show, and not with an eye toward advancing any real policy agenda.

And finally, the President continues to double and triple down on the notion that a COVID-19 vaccine is imminent. On Monday, he said that the timeline is "a matter of weeks." There is nobody besides Trump who believes that, and even the most optimistic projections are that something may be approved by late November or December, and may be available to the general public sometime next year. We really have no idea what the President is playing at here. It's one thing to promise things that are abstractions or semi-abstractions like "I will build a wall" or "I'm getting tough on the Chinese" or "I will protect you from MS-13 gangsters." It's another thing to promise something concrete that people are very eager to receive, and then fail to deliver. A rough equivalent would be something like promising all Americans that they will get another check for $1,200 on October 15, and then to send out no checks. We shall see what Trump's plan is, if he even has one, and how the public reacts to his obvious over-promising and under-delivering. (Z)

Do You Believe in Magic?

The magic number in American politics, of course, is 50%. A candidate might win with less than that, but they are guaranteed to win if they are at or above that number. As the presidential campaign heads into its last six weeks, we thought we would zoom in on the meaty part of our Tipping-Point Chart, and see how close the candidates are to the promised land. For purposes of this exercise, we have our polling averages, which are based on the last week's worth of polls. We also have 270toWin's polling averages, which are based on the past 30 days or the past 5 polls, whichever quantity is reached first. And we have FiveThirtyEight's polling averages, which are based on a Nate Silver secret sauce "accounting for each poll's quality, sample size and recency."

Keep in mind that the EV total is based on what it would be if that particular candidate wins the state, so if—for example—Biden wins all the way down to Arizona, he'll have 280 EVs and Trump, having won all the way up to Nevada, will have 258. If you read straight across, then you are awarding a particular state's EVs to both candidates. And with that warning, here are the numbers:

		EV		270toWin		FTE
State	EVs	Biden	Trump	Biden	Trump	Biden	Trump	Biden EVs	Trump EVs
Minnesota	10	51%	42%	51%	42%	51%	42%	239	309
Wisconsin	10	50%	43%	49%	43%	50%	44%	249	299
Pennsylvania	20	50%	44%	49%	45%	50%	45%	269	289
Arizona	11	49%	43%	49%	42%	49%	44%	280	269
Nevada	6	46%	42%	45%	41%	47%	41%	286	258
New Hampshire	4	45%	42%	45%	42%	50%	43%	290	252
Florida	29	49%	46%	48%	45%	48%	46%	319	248
North Carolina	15	48%	46%	48%	45%	48%	46%	334	219
Georgia	16	45%	46%	46%	46%	47%	46%	350	204
Texas	38	46%	48%	47%	48%	47%	47%	388	188

The first thing you might notice is that the three approaches are producing very similar results. Excepting New Hampshire, where FiveThirtyEight is a bit more sanguine about Joe Biden's chances than we or 270toWin are, all the numbers are within a 1-2 point range.

The second thing you might notice is that Joe Biden is tantalizingly close to the land of milk and honey. In fact, if we assume he wins the one rogue Nebraska EV (and he leads in polling there by a fair margin) and he holds the 1 sometimes-rogue Maine EV, he's already at or above 50% in enough states to win the Electoral College. All three polling averages also agree that Biden's right on the precipice in Arizona, and that he's just shy of the precipice in Florida and North Carolina.

In the end, this is yet another way of saying that Donald Trump's math is daunting, even more so than in 2016. By hook or by crook, he not only needs to snap up nearly all of the undecideds, he also has to steal some of the voters currently planning to vote for Biden. The debates, or the RBG situation, or Russian shenanigans, or some other curveball might make it possible, but that hill is steep and seems to be getting steeper. (Z)

Biden Is Rolling in Cash

If Joe Biden loses the election (not looking likely; see above), it won't be for a lack of money. Thanks to the avalanche of money that flowed in after the selection of Kamala Harris as his running mate, and then the passing of Ruth Bader Ginsburg, the Biden campaign has so much money that the candidate could go swimming in it, like Scrooge McDuck. Specifically, Biden 2020 has $465 million in the bank. Trump 2020, by contrast, has $325 million, despite having been outspent 2-to-1 by the Biden campaign over the last couple of months.

It is clear that the Trump campaign is desperately trying to catch up. They sent a staggering ten fundraising e-mails to the Trump 2020 mail list on Monday, trying to get respondents' blood boiling over Biden's fundraising, Speaker Nancy Pelosi (D-CA), Hillary Clinton, Ruth Bader Ginsburg's Supreme Court seat, the "unfair" debates, and impeachment. It seems like we're approaching "getting blood from a stone" territory, though, especially since the Trump campaign has been hitting the e-mail list hard for four straight years. One e-mail every 2.5 hours fairly reeks of desperation. By contrast, the Biden campaign sent out two, neither of them rooted in anger and resentment.

If our supposition is right, it means the Biden campaign will be able to keep outspending the Trump campaign by a large margin right up until Election Day. Further, there is evidence suggesting that Team Biden spends its money more effectively than Team Trump does, primarily because the former is made up of veteran political operatives while the latter has a sizable number of "outsiders" (translation: amateurs), not to mention folks who are clearly on the take (see Parscale, Brad). We are skeptical that money matters all that much in the modern, fractured media environment. But we don't believe that money has no impact whatsoever. Besides, TV advertising isn't the only thing money can buy. It can also be used to hire people to call voters and ask for more money or their votes or explain to them how to get an absentee ballot. (Z)

Today's Presidential Polls

As noted above, the number of undecideds is slowly dwindling, and Biden appears to be approaching the magic 50% mark in his must-have states, and even in some of his it-would-be-nice states. (Z)

State	Biden	Trump	Start	End	Pollster
Maine	51%	39%	Sep 17	Sep 20	Suffolk U.
Pennsylvania	49%	46%	Sep 11	Sep 16	Ipsos
Wisconsin	48%	43%	Sep 11	Sep 16	Ipsos

Today's Senate Polls

Three-quarters of that Suffolk poll was conducted after Ruth Bader Ginsburg's passing was public knowledge. Susan Collins can't be happy at the trendline, and this is before she's compelled to take any difficult votes. Meanwhile, after a couple of not-so-bad polls, Thom Tillis gets another stinker. We shall see in future polls how North Carolinians feel about his unflinching support for jettisoning the McConnell Rule. (Z)

State	Democrat	D %	Republican	R %	Start	End	Pollster
Maine	Sara Gideon	46%	Susan Collins*	41%	Sep 17	Sep 20	Suffolk U.
North Carolina	Cal Cunningham	49%	Thom Tillis*	43%	Sep 16	Sep 18	Emerson Coll.

* Denotes incumbent

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