Breyer to Disrobe

It may be January, and he may be Jewish, but Associate Justice Stephen Breyer just gave Joe Biden and the Democrats the Christmas present they had been wanting: He announced that he will retire at the end of the term, thus giving the President an opportunity to fill a Supreme Court seat with a liberal much younger than Breyer's 83 years.

Actually, to be entirely accurate, Breyer did not announce his retirement at all. He told several people, including White House Chief of Staff Ron Klain, about his plans last week. And what happened yesterday was that the news leaked out. Reportedly, the Justice was either angry or surprised (depending on who you believe) that his retirement became public a bit before he was ready to share the news with the world. If so, well, he really shouldn't have expected a story this big to remain secret. In any event, the cat's out of the bag now.

It would appear that Breyer wasn't the only one caught by surprise, though. The White House refused to say much about the news. Maybe Joe Biden is trying to play it cool and to put a lid on partisan tensions as much as possible. But it sure seemed like the administration thought they had a couple more days to get their ducks in a row, and wasn't quite ready to respond to the news.

Even with Team Biden having little to say, everyone who follows politics knows full well that while he was campaigning in 2020, the President committed to nominating a Black woman to the Court. In fact, this may have been a prerequisite for securing the support of Rep. Jim Clyburn (D-SC), which Biden really needed. There's no going back on that now, so the main topic of discussion yesterday was "Which Black woman?" Here are the main candidates (ages in parentheses):

It's Her Job to Lose:

D.C. Circuit Judge Ketanji Brown Jackson (51): She has an impeccable résumé, is clearly Breyer's favorite choice (Brown clerked for him), and has been groomed as a justice-in-waiting. She's only been on the U.S. Court of Appeals for the District of Columbia for a year, but other justices were also elevated with limited experience on high-level courts, and Jackson spent 8 years on the United States District Court for the District of Columbia. Also, she was already vetted and approved by the current Senate, collecting the votes of all the Democrats and independents, plus three Republicans (Susan Collins, R-ME; Lisa Murkowski, R-AK; and Lindsey Graham, R-SC). Graham already said he's not voting for her again, but it would be rather... visible if the two Democratic apostates, Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ), suddenly changed course. And even if they do, the votes of Collins and Murkowski may be available again.

Next Woman Up:

South Carolina U.S. District Court Judge J. Michelle Childs (55): If Jackson's candidacy hits the rocks for any reason, Childs is the favorite to claim the nomination. She doesn't have an Ivy League education, which is normally disqualifying for SCOTUS nominees, but could be a selling point given the perception that both the Democratic Party and the Court have become elitist. She has served on the United States District Court for the District of South Carolina for more than a decade, and before that was a state judge for 4 years. She also has the enthusiastic backing of Clyburn.

Longshots:

California Supreme Court Justice Leondra Kruger (45): She was the youngest state Supreme Court judge in California history when appointed by then-governor Jerry Brown 7 years ago. Before that, Kruger served in the U.S. Solicitor General's office, and was also a clerk for former justice John Paul Stevens. If Biden decides he must have the youngest person possible, Kruger might get the nod. Of the women listed on this longshots list, she's certainly the most probable, but she seems more like a future pick rather than a current one.

Seventh Circuit Judge Candace Jackson-Akiwumi (42): If Biden wants to go even younger than Kruger, then he could tap Jackson-Akiwumi. She's a former public defender, which could be selling point given how many judges are former prosecutors, and is also from the home state of Senate Judiciary Chair Dick Durbin (D-IL). However, she's only been on the federal bench for 6 months, so it would be a tough sell.

Lawyer Sherrilyn Ifill (59): This would be an outside the box pick, since Ifill has served many years in activist positions, including her current post with the NAACP, but has not been a judge. That said, Elena Kagan came to the Supreme Court without previous bench service, so it's not impossible.

Georgia U.S. District Judge Leslie Abrams Gardner (47): She's been on the federal bench for 7 years, and before that was an assistant U.S. Attorney and also spent time in private practice. She's the sister of Stacey Abrams, which could be a selling point with voters, but might make some senators skittish for fear that she would have, or has had, conflicts of interest.

Longest Shot:

Kamala Harris (57): This is mostly coming from the direction of Fox's talking heads, since it is Fox that has most fully embraced the narrative that Harris and Joe Biden hate each other and that he would like to cut her loose. If that was true, then dumping Harris on the Supreme Court would be a way to get her out of the White House. It's not happened with a troublesome VP before, but it's happened with troublesome cabinet officers, such as Salmon P. Chase and James Clark McReynolds.

It's not happening, though. Even if Biden and Harris can't stand each other (and that is just speculation from Fox, not fact), it would be a huge admission of defeat to jettison the VP after barely more than a year. On top of that, she has said she doesn't want the job. And perhaps most problematic is that she could very well be put in a position of casting the tiebreaking vote on her own nomination. That's probably legal, but it wouldn't look very good, and it would also lead to years of lawsuits as nutters like Orly Taitz tried to prove that Harris' commission was not legitimate.

There are a few other names being bandied about. Several Latino groups are pushing for Sen. Catherine Cortez Masto (D-NV), for example, while some LGBTQ+ groups want Washington Supreme Court justice Grace Helen Whitener, who checks many boxes as she is female, gay, Black, an immigrant, and disabled. However, the odds are overwhelming that it will be Jackson or Childs.

Because the White House was being tight-lipped yesterday, it's not known how quickly Biden will make his pick. However, it will likely be fast—next week wouldn't be much of a surprise. Thereafter, Senate Majority Leader Chuck Schumer (D-NY) said he will move forward quickly, and that he envisions a timeline similar to the one for Associate Justice Amy Coney Barrett. If so, that would be 11 days to the nomination and another 27 to confirmation. Biden, Schumer, and every other Democratic pooh-bah know full well that if something happens to one of the Democrats serving in a state led by a Republican governor, or to Kamala Harris for that matter, they would likely be screwed out of another seat. So, they are not going to drag their feet. Breyer's retirement won't be official until the end of the term, but Schumer's plan is to wrap everything up and then keep the commission in his desk drawer until it is time to formally deliver it to the White House in July.

Overall, this is obviously good news for the Democrats. They are now in an excellent position to hold Breyer's seat for another 20-30 years, and won't have to worry about a repeat of what happened with Ruth Bader Ginsburg. Further, seating a new, Black justice in July or August—particularly if the Supremes have just gutted Roe—could fire up Democratic voters in advance of the midterms. This will also give the Biden administration a "win," and may cause memory of some setbacks to fade.

That said, with the good comes the bad, and with the bad comes the good, so it's not all sunshine and rainbows for the blue team. To start, the suddenness of Breyer's departure, along with the unusual timing, could speak to as-yet-unknown problems for the Party. Perhaps the DNC has crunched the numbers and concluded that holding the Senate is not likely. Or maybe one of the red-state Democratic senators has health issues, and needs to retire. This is just speculation, but is a possibility worth noting.

Beyond that, this is most certainly going to be wielded as a weapon by Republicans. Consistent with the politics of white grievance that looks to be the Party's platform in 2022, there has been a near-obsession in the past few months that Harris was only tapped for the #2 slot because of her skin color, and that she is the "Affirmative Action VP" or the "Reparations VP." That's terribly offensive, but it doesn't mean that Republicans aren't saying it, and it doesn't mean the message isn't landing with some swing voters. Anyhow, the same thing is going to happen with Biden's nominee, given how clear he was about his plans. In fact, it already is happening; there was kvetching from some right-wing pundits yesterday, declaring that the President would be choosing an "Affirmative Action Justice." They must have somehow forgotten that Clarence Thomas was chosen by George H. W. Bush specifically because the "Black seat" on the Court came available with the departure of Thurgood Marshall.

Anyhow, this is going to dominate many a news cycle for the next month or two. So, brace yourself for a lot of Supreme Court talk. Incidentally, the departure of Breyer means that there will be no justices left who were appointed by Bill Clinton. (Z)

The Lord Giveth and the Lord Taketh Away

The South is Jesus country—for one particular understanding of "Jesus," at least. So, that brought to mind Job 1:21 when we learned that the near-certain +1 House seat that Republicans will gain in Tennessee is going to be offset by the -1 hit they are going to take in Alabama.

The Tennessee seat, as we noted yesterday, is the one currently represented by Rep. Jim Cooper (D). His district, TN-05, is solid blue (D+9) among a sea of ruby red districts (R+21, R+22, and R+26). It was thus a fairly simple matter to gerrymander that situation into four solid Republican districts, and that is exactly what Tennessee Republicans did. Lawsuits are going to be filed, but the changes to the map did not clearly deprive minority voters of representation. Absent that, or else strongly worded state laws, the chances of a judge stepping in are very poor.

On the other hand, if you want to see what an illegal racial gerrymander looks like, look no further than the map approved by the Republican-dominated Alabama legislature:

As you can see, Alabama Republicans bent over backwards to get Birmingham and Montgomery into the same district, the D+29 AL-27. That produced a shape that we would describe as either "roadkill" or "Rorschach Test":

It is not a coincidence that Birmingham is 68% Black and Montgomery is 60% Black, giving those cities the two largest minority populations in the state.

Anyhow, a group of Black Alabamians filed suit, and three judges from the southern division of the U.S. District Court for Northern Alabama (not to be confused with the northern division of the U.S. District Court for Southern Alabama) agreed the map was problematic. In a unanimous decision, the justices—two of them Donald Trump appointees, and the third a Bill Clinton appointee—ordered the state of Alabama to come up with a new map that creates two majority-Black districts rather than one. Alabama has 14 days to comply, or else the court will give the job to a special master.

Alabama Attorney General Steve Marshall (R) has already promised an appeal, and the matter may well work its way up to the U.S. Supreme Court. However, there may not be time for that this cycle, so Alabama may have to move forward with the map demanded by the three-judge panel, at least for now. Further, the district court's ruling was specifically based on previous decisions from the Roberts Court related to racial gerrymanders. Unless SCOTUS wants to reverse itself in high-profile fashion, at a time when confidence in the Court is already low, then they will either rule against Alabama or, more likely, decline to take the case. (Z)

Those Texans Sure Are... Inventive

As long as we're on the subject of electoral shenanigans undertaken by Republicans in Southern states, let's mention this story that came out of Texas last week. Voting-rights groups are already busy trying to register as many people as is possible, in advance of the cutoff for primary voting (Jan. 31) and general election voting (Oct. 11). And guess what? The Lone Star State just so happens to be running short on voter registration forms, such that they are being rationed right now.

Sam Taylor, Texas' assistant secretary of state for communications, blamed the shortage on supply-chain issues. "We are limited in what we can supply this year, because of the paper shortage and the cost constraints due to the price of paper and the supply of paper," he explained. Apparently, shortages happen every year, but this year they are particularly acute, and are affecting in particular the ability of activist groups to get newly naturalized citizens registered.

There's no way to know for sure if the supply-chain issues are real, or are just a convenient excuse, although Texas has kind of surrendered the benefit of the doubt in circumstances like these. Even if the shortage is legitimate, we suspect that the state government will not bend over backwards to get the problem resolved quickly. We can also imagine that other red states might take some inspiration from this, and develop "shortages" of their own. After all, if you can exclude a few voters here, and a few voters there, it starts to add up. Anyhow, it's worth watching to see if Florida, in particular, suddenly discovers it is running short on voter registration forms. (Z)

Barns Will Burn in Georgia

Two important races this year—possibly the two most important anywhere—will take place in Georgia. Those would be the gubernatorial election and the competition for Sen. Raphael Warnock's (D-GA) seat. Not only will these two contests fill two very important political offices, they will also serve as a test of Donald Trump's power to swing elections, since he is strong on David Perdue (R) for governor and Herschel Walker (R) for senator. Quinnipiac has just released the first good-quality poll of the races. And when it comes to predicting which candidates will win, the answer is: Who knows? Every significant matchup, save one, is a statistical dead heat.

It is in the race for the Republican gubernatorial nomination that there is at least a little daylight between candidates. There, 43% of likely Republican primary voters support Gov. Brian Kemp (R-GA), whereas 36% support Perdue. Another 10% support Vernon Jones (R), 5% support other candidates, and 5% are undecided. That does not add up to 100% because of rounding. It's not because the staff mathematician was seeing double when he got out his calculator. Mind you, he was seeing double; it's just that this is not why the numbers don't add up.

Once we get to the general election, things tighten up. In a hypothetical matchup of Kemp vs. sure-to-be-Democratic-nominee Stacey Abrams, Kemp leads 49% to 47%. If it's Perdue instead, then it's a tie at 48%. And in the U.S. Senate race, Walker leads Warnock 49% to 48%. The poll has a margin of error of 2.4 points for general election questions, and 3.8 points for Republican primary questions (upon which the pollster spoke to exactly 666 people). So, the small Kemp lead over Abrams and the small Walker lead over Warnock are well within the margin of error.

We would guess that Warnock and Abrams ultimately have more room to grow their support than do the Republican candidates. First, the Democratic brand is pretty damaged right now, and if it recovers a bit, well, a rising tide lifts all boats. Second, the gubernatorial candidate is going to face a rough primary, and is probably going to have to tack right a little (or a lot) to get the nomination, which could complicate the general election for them. And while Walker is safe to advance to the general, he's an inexperienced—and thus far very poor—campaigner. For someone like that, 10 months is time to make a lot of big mistakes.

And speaking of brands, the early numbers aren't looking great for Trump's. He'll take the most damage if Perdue and Walker are both defeated, of course. But even if that doesn't come to pass, it's pretty clear that Perdue is less popular than the enemy-of-Trump Kemp, and that Walker is no more popular than "generic Republican." That doesn't speak well for the power of Trump's endorsement, particularly in the purplish states where endorsements matter the most. (Z)

A Useless Idiot?

It is not actually clear if Vladimir Lenin (or any other Soviet, for that matter) ever used the term "useful idiot" to refer to Americans who were unwittingly (or semi-wittingly) toting the water for Russian interests. Two things are clear, however: (1) The Soviets, and later the Russians, most certainly cultivated such individuals, whether or not there was a specific term for them, and (2) the term has most definitely entered the American political lexicon.

Today's most prominent useful idiots, beyond Donald Trump, are almost certainly former NSA Michael Flynn and Fox personality Tucker Carlson. They are both excellent at toeing the party line. And the party we mean is Единая Россия, a.k.a. United Russia, the party of Vladimir Putin. Several times this week, Carlson has parroted Putin's own position on Ukraine, declaring that Russia has an absolute right to get involved in that country, and comparing the situation to a hypothetical one in which Mexico has fallen under the control of China. Put another way, since "Mexico" is "Ukraine" and "China" is "the United States," Carlson is arguing that Russia is entitled to push back against American military power. In case anyone missed his message, he doubled down with this: "Why do I care... what is going on in the conflict between Ukraine and Russia? And I'm serious. Why do I care? Why shouldn't I root for Russia, which I am?"

Meanwhile, Flynn wrote an op-ed this week advancing the same basic argument:

The United States and the Russian Federation are great nations. However, these great nations each have thousands of nuclear weapons that could kill hundreds of millions.

With those as the stakes, it would be wise for [Joe] Biden and [Secretary of State Antony] Blinken to listen to what Putin is saying and consider why Russia believes its vital national interests are at risk. If the United States has no comparable national interest to that of Russia, that should be the basis for de-escalation.

The Flynn piece was published in The Western Journal, a far-right publication that frequently appears in studies published by Center for Countering Digital Hate.

Readers above the age of 30 or so will recall a time when the Republican Party disliked Russia and everything the Russians (either during the Soviet era, or after) stood for. Why is a sizable chunk of the party of Ronnie Reagan all of a sudden cozying up to the former KGB agent Putin? There are at least four major reasons:

1. Reflexive principle: The Biden Administration is on the side of Ukraine, just as the Obama administration was. Carlson, Flynn, and many other right-wingers reflexively adopt whatever position is the opposite of the one favored by Democrats. So, they are anti-Ukraine and pro-Russia.
   
   
2. Saving Donald Trump: Everyone knows that the Russians helped Donald Trump win the 2016 election, and tried to help him win the 2020 election. Most people know, or at least strongly suspect, that Trump welcomed and encouraged that help. The more that Russia is normalized, the less problematic Trump's behavior becomes, and the more problematic the Mueller Report becomes. Also, the more "wrong" that Ukraine becomes, the more justifiable Trump's influence peddling with them becomes, and the more problematic the first impeachment becomes.
   
   
3. America First: Putin is anti-NATO, and is scared witless that Ukraine might be invited to join the alliance. Trumpublicans are anti-alliance in general, and anti-NATO in particular, so they are on the same page with Putin here.
   
   
4. White pride, worldwide: Russia is the most overtly white supremacist country in Europe, with much energy there spent on worrying about "racial purity." Consequently, it is very popular with white supremacists like David Duke and Richard Spencer. That therefore makes pro-Putin and pro-Russia rhetoric a useful dog whistle for connecting with those elements among the base.

Keeping in mind that the average Fox viewer is nearly 70, and would have been steeped in the "cold warrior" culture of the 1960s and 1970s, these factors help explain how Carlson can spew such obvious Russian propaganda and have his audience eat it up. If this was 1985, he and Flynn would have no place in the Republican Party with rhetoric like this. If this was 1950, he and Flynn would be hauled before Joseph McCarthy to account for themselves.

But while Carlson is holding on to his American audience, he has been so over the top in expressing pro-Russia positions that he is losing one part of his fanbase: The Kremlin. It would seem that he's been so careless with his pro-Russia verbiage, and that he's undermined his credibility in so many other ways, that officials in Russia think he's not so useful anymore. In fact, they worry that he's actually harming them, since anything he says can be easily dismissed as the position of foaming-at-the-mouth white supremacist cranks. So, Team Putin might need to find themselves a new and less tarnished media mouthpiece. Hmmm...we hear that Joe Rogan is an idiot. So maybe him? (Z)

Looking Backward: How Did The Readers Do?, Part VI: Congress, the Legislation

We had to pause the predictions because other items took up a lot of time the past couple of days. We were determined to resume today, though the surprise retirement of Stephen Breyer means we had to pause the ongoing coup/Biden trajectory series. There's only so much time in the day, at least until we find the phone booth that leads to the Ministry of Magic and steal ourselves a time turner. Anyhow, here are the past predictions pieces:

• Looking Backward: How Did The Pundits Do?
• Looking Forward: The Pundits Predict 2022
• Looking Forward: The Pundits Predict 2022, Part II
• Looking Backward: How Did We Do?
• Looking Forward: We Predict 2022
• Looking Backward: How Did The Readers Do?, Part I: Donald Trump
• Looking Forward: The Readers Predict 2022, Part I: Donald Trump
• Looking Backward: How Did The Readers Do?, Part II: Donald Trump's Family and Supporters
• Looking Forward: The Readers Predict 2022, Part II: Donald Trump's Family and Supporters
• Looking Backward: How Did The Readers Do?, Part III: Right-wing Politicians and Media
• Looking Forward: The Readers Predict 2022, Part III: Right-wing Politicians and Media
• Looking Backward: How Did The Readers Do?, Part IV: The Biden Administration
• Looking Forward: The Readers Predict 2022, Part IV: The Biden Administration
• Looking Backward: How Did The Readers Do?, Part V: The Supreme Court
• Looking Forward: The Readers Predict 2022, Part V: The Supreme Court (and Other Legal Matters)

And now, here's what the tarot cards told readers was in store for Congress in 2021. Remember, it's up to 5 points for accuracy and up to 5 bonus points for the boldness of the accurate part of the prediction, for a possible total of up to 10 points.

• A.H. in Linwood, NJ: Puerto Rico and D.C. (Douglass Commonwealth) will be added as states before the end of the year.
  
  Comments: Didn't come close to happening, thanks at least in part to a senator whose name rhymes with Moe Janchin. Accuracy: 0/5, Boldness: 0/5, Total: 0/10
  
  
• P.S. in Bellevue, NE: D.C. will not become a state during the Biden Administration, if ever.
  
  Comments: Correct, though given that people have been pushing for D.C. statehood for 200 years and it hasn't happened, it wasn't all that bold to expect the streak to reach 201 years. A: 5/5, B: 1/5, T: 6/10
  
  
• A.H. in Midland, GA: Politicians and lawmakers will use the attack on the Capitol to try and pass, unjustly in my opinion, censorious laws in regards to online social media platforms, forums, blogs, comment sections, etc.
  
  Comments: Not yet, at least, though the platforms themselves have tossed a few insurrectionists out. A: 0/5, B: 0/5, T: 0/10
  
  
• E.P. in Gunma, Japan: The Democrats will be able to pass significant legislation to address elections, labor, the environment, and/or healthcare despite Senate Minority Leader Mitch McConnell's (R-KY) objections.
  
  Comments: If Build Back Better and the voting bill had passed, this would be almost entirely accurate. But they didn't, so it isn't. A: 0/5, B: 0/5, T: 0/10
  
  
• E.L. in Dallas, TX: The filibuster will stay in place. Therefore, Congress will mostly be non-functional and will only pass a few relief bills, regulations to rein in presidential powers (especially on the ability to spend appropriated money), and rename some government buildings that were named after traitors.
  
  Comments: Mostly true, though you didn't allow for the bipartisan infrastructure bill. Also, the Confederate names are still in place. In any event, you get most of the accuracy points, but we must rule that predicting dysfunction in Congress is not especially bold. Heck, more than 200 years ago, Thomas Jefferson said "That 150 lawyers should do business together ought not to be expected." And he never even met Mitch McConnell. A: 4/5, B: 1/5, T: 5/10
  
  
• E.N.A. in Olalla, WA: My bold prediction is that the Republicans and Democrats, sometime prior to the 2022 election, will find a way to pass legislation, possibly a Constitutional Amendment, to rein in the unfettered power of the president. The Democrats because they remember Donald Trump and the Republicans because they fear a Democratic "Donald Trump."
  
  Comments: Certainly hasn't happened yet, and doesn't appear to be on the horizon. A: 0/5, B: 0/5, T: 0/10
  
  
• J.A. in Redwood City, CA: In the Senate, the filibuster will fall to the Democrats, or at least become much more difficult to execute. Later, Democrats will regret making that change, as early as 2022.
  
  Comments: In 5 years, this may prove prescient. But not at the moment. A: 0/5, B: 0/5, T: 0/10
  
  
• J.C. in Monteverde, FL: Joe Manchin won't be so tough, and many progressive policies will get through. The filibuster will fall when an egregious Supreme Court decision happens and gives him cover to support it.
  
  Comments: So far... not so good. And never again will someone speculate that Manchin is a closet progressive. A: 0/5, B: 0/5, T: 0/10
  
  
• J.F. in Houston, TX: A climate bill which establishes a well-funded National Center for Climate Research and Technology in Huntington, West Virginia, is sponsored in the Senate by Joe Manchin, Mitch McConnell, Sens. Sherrod Brown (D-OH) and Rob Portman (R-OH), among others.
  
  Comments: See above about closet progressive Joe Manchin. Let's not forget that coal runs through his veins. A: 0/5, B: 0/5, T: 0/10
  
  
• L.R.H. in Oakland, CA: The John Lewis Civil Rights Act will be passed this year.
  
  Comments: Seemed very possible a year ago. Didn't happen, of course. A: 0/5, B: 0/5, T: 0/10
  
  
• M.C.G. in Madison, WI: Congress will fail to take any major steps like healthcare for all, statehood for D.C. and Puerto Rico, comprehensive immigration reform, major infrastructure/energy overhaul or major action on the environment.
  
  Comments: Correct, though again, predicting an unproductive Congress is not exactly Nostradamus-level sticking your neck out. A: 5/5, B: 1/5, T: 6/10
  
  
• S.J.S. in Toms River, NJ: Within 24 hours of Biden's inauguration, one or more GOP members of the House will introduce, or attempt to introduce, articles of impeachment against the new president.
  
  Comments: It actually took until March 5, with Rep. Marjorie Taylor Greene's H.R. 57. She's presumably not culturally literate enough to realize that number brings to mind another paranoid demagogue, namely Joe McCarthy. In any event, we would say that the spirit of your prediction is correct, if not the letter. We can't say it was all that bold, however; stunts like this are stock in trade for certain elements of the Trump wing of the Republican Party. A: 3/5, B: 1/5, T: 4/10

That's 21 of a possible 120, for a depressing .175 batting average. That will also drag the overall BA down; the running total is now 173/680, which works out to .254. Tomorrow, we'll see what the readers think Congress will, or won't, do in 2022. (Z)

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