The Day After

Stephen Breyer inadvertently won the weekly news cycle when his retirement plans leaked prematurely on Wednesday. On Thursday, the dust from that particular bombshell was still settling.

To start, Breyer made it official and announced that he is, indeed, stepping down at the end of this term. That wasn't much of a secret, but now we have it from the horse's mouth. He also sent his letter of resignation to The White House, so there's no going back now.

Similarly, Joe Biden made it official that his nominee will be a Black woman. "The person I will nominate will be someone with extraordinary qualifications, character, experience and integrity. And that person will be the first Black woman ever nominated to the United States Supreme Court," the President said on Thursday. "It's long overdue in my view. I made that commitment during the campaign for president, and I will keep that commitment." This wasn't much of a secret, either—Biden's candidacy was saved by Black voters, and he could hardly back out on his main campaign promise to that constituency. But now, once again, we have it from the horse's mouth.

Senate Republicans, who may have something of a habit of talking out of both sides of their mouths, said they would give Biden's eventual nominee a "fair hearing," but also began laying the groundwork for smearing anyone the President comes up with as a wild-eyed, flaming leftist—you know, Trotsky in a robe. Senate Minority Leader Mitch McConnell (R-KY), for example, expressed his concern that the President would outsource the nomination to "the radical left." You have to have a fair bit of temerity to say something like that when you're a politician who, when it comes time to approve judges, doesn't so much as sneeze without clearing it with the Federalist Society.

In other words, Republican oppo researchers are undoubtedly vetting all of the likely nominees so that they have their talking points once the nomination is actually made. Assuming that Biden taps the prohibitive favorite, Ketanji Brown Jackson, here are the smears the red team is likely to go with:

• Jackson once defended one of the detainees at Guantánamo Bay—an Afghan citizen and alleged commander of a jihadi battalion, Khi Ali Gul. So, if Jackson is confirmed to the Supreme Court, the terrorists win. What will surely go unmentioned is that Jackson was acting as a public defender at that time, was assigned the case, and had little power to decline.
  
  
• When Jackson was asked to rule on the question of whether former White House counsel Don McGahn was immune from testifying before Congress (and, by extension, all members of the Trump administration were immune), she wrote a lengthy and strongly worded decision rejecting the claim. So, she's a left-wing shill who hates Donald Trump and is probably working for the deep state. Of course, most judges who rule in these cases tend to write strongly worded decisions since the arguments made by Trump & Co. are often so weak they approach frivolous lawsuit territory.
  
  
• Jackson is supported by Demand Justice, an organization that supports court packing. One might observe that if a person is responsible for all the groups that choose to support them, there are several members of the GOP conference who have been endorsed by the Proud Boys.
  
  
• Jackson is an "Affirmative Action" justice. Readers can evaluate that claim for themselves, but it's worth noting that many Supreme Court justices—if not most—are picked, at least in part, because they checked some ethnic, cultural, or religious box. Probably the most enthusiastic practitioner of this approach was Ronald Reagan, who declared openly that he was picking Sandra Day O'Connor to demonstrate that he was not a sexist. The Gipper also picked Anthony Kennedy, in part, because he was Irish and Antonin Scalia, in part, because he was Italian. Those ethnic groups, and Catholics more broadly, were key swing constituencies back in the 1980s.

If it is Jackson, you'll surely hear at least a couple of these things—and probably all of them—from Republican senators during the process.

Meanwhile, the Democrats are worried. That's kinda what Democrats do. The first thing they are worried about is that the approval process will take too long. Biden said that he'd have a nominee by the end of February—in other words, about 4 weeks—which means confirmation by mid-to-late March. That leaves perhaps 50 days for a Democratic senator from a state with a Republican governor to die or resign, or for one of the two (D?) senators to decide to decamp for redder pastures. And 50 days is about 49.95 too many in the view of many members of the blue team.

That brings us to the second thing Democrats are worried about—that, having scuttled Build Back Better, the voting bills, and changes to the filibuster, Sen. Kyrsten Sinema (D?-AZ) or Sen. Joe Manchin (D?-WV) might decide to become a fly in the Supreme Court ointment. Making sense of those two is never easy, but they've voted for every one of his judicial nominees so far, and Manchin already said he is ok with a nominee more liberal than he is. So, this is probably much ado about nothing, but you never know until the new justice gets her commission. Oh, and this isn't relevant to anything, but Manchin wore a green suit with a pink tie yesterday. That made him look like a televangelist, or else someone headed to his night job selling Lucky Charms cereal.

Anyhow, the Breyer story probably enters a holding pattern now until Biden makes his pick. (Z)

BBB Was Only Mostly Dead, It Would Seem

Speaking of Joe Manchin, he's not categorically opposed to Build Back Better, even if he singlehandedly killed its previous incarnation. Actually, it's more than just "he's not opposed." He's under rather serious pressure from coal miners in his state, whose vote he needs, to make the bill happen.

Of course, not everyone has Miracle Max at their disposal when they need to perform a resurrection of the mostly dead. However, the Democratic Party does have Miracle Pramila Jayapal (D-WA), who is almost as good. And she is hustling in hopes of salvaging as much of Build Back Better as is possible. She says she is in touch with Manchin, and that he has made clear his willingness to support $550 billion on climate change, plus universal pre-K, eldercare, child care, and lowering prescription drug costs. So, Jayapal wants to get those passed ASAP, and then build on that in hopes of achieving future victories.

Jayapal is already actively selling this approach to supporters. Speaking to the climate activist group Evergreen Action, she said:

Let's take those things and put them together and pass them in the Senate. There's already text. It's very easy now to go through and make that bill match the things he said he would do. Now, does that mean we're giving up on the other things that he didn't say he would do? No way. No way. We're not giving up on anything.

This sort of compromise might not be salable to the progressives if it was coming from Democratic leadership, or from Manchin. But if Jayapal, as leader of the House Progressive Caucus, is going to throw her weight behind "let's take what we can get now," then that will probably get the job done. After all, some money to fight climate change is better than zero money to fight climate change. So, February might well see the return of a lot of reconciliation bill news. (Z)

Sinema's Sinking

While Joe Manchin is saying things that may partly rehabilitate his reputation with his fellow Democrats, Kyrsten Sinema is having no such luck. She could have come out and said she will support Joe Biden's SCOTUS nominee, but thus far has chosen not to pick that low-hanging fruit. She could be a part of the Manchin-Pramila Jayapal talks, but apparently that's not her (Gucci) bag.

A new poll from Phoenix-based OH Predictive Insights speaks to how tenuous her position has become: 44% of Arizona Republicans now view her favorably as compared to 42% of Arizona Democrats. That is to say, she's apparently more popular with the other party than she is with her own. That's not a recipe for success; even if she switches parties, 44% is no great shakes, and there's likely little room to grow that.

She's also losing the support of the folks that have an outsized influence on electoral politics. Some donors have gone so far as to ask for their money back. They're not going to get it, but many of them will never give her another dollar, and are already rerouting their funds to primary challengers, primarily Rep. Ruben Gallego (D-AZ). Meanwhile, many activists have soured on the Senator, as well. Vice had a piece this week in which a series of one-time Sinema volunteers and staffers excoriated her. "People need to know she sucks," said one of them in a remark that gives a pretty good sense of the tone and tenor of the article.

Earlier this week, we noted that we really don't know what she's playing at, and we asked readers for their theories. Here are some of those:

S.S. in West Hollywood, CA: I assume there's money to be followed we don't yet know about. One day we'll learn who's rewarding her for sabotaging democracy and the Democrats' agenda. The only thing I'm certain of is that I will be donating to her primary opponent!

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C.C. in Houston, TX: I would not be surprised to learn that Peter Thiel (or someone like him—Koch, the Mercers, etc.) has put $20 million in an untraceable account for her and now gets to direct how she votes. She sure would not be the first elected official who sold out.

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K.C. in Portland, OR: Sinema Tower Moscow?

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S.T. in Philadelphia, PA: She wants to be a token Democrat talking head on Fox News so they can claim to be "fair and balanced."

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D.K. in Parlin, NJ: It makes little political sense for her to behave this way. It's political suicide. My take on this is that someone has some dirt on her, and is using it as leverage to make her do this.

What could the skeletons in her closet be? Who knows? Maybe she did something embarrassing, maybe she is deep in debt, maybe she has a gambling problem and owes bookies lots of money.

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L.R.H. in Oakland, CA: Here's a report based on a Twitter thread by Amy Siskind (link in the article), claiming that Kyrsten Sinema thinks that she is running for President in 2024.

I consider a Sinema candidacy as plausible as Tom Friedman's outrageous suggestion of a Biden-Liz Cheney ticket, but Sinema could be that deluded.

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J.C. in Washington, DC: As an Arizona voter (that votes absentee), I wanted to offer my take.

You noted on Monday that she is underwater among Democrats in several hypothetical primary contests. This is true, but I still think she thinks she can win. Why? In Arizona, a full one-third of the electorate is registered "no party" (myself included). Voters of our persuasion are able to choose which primary we vote in.

I strongly believe she is trying to brand herself as "the new Maverick" to attract voters such as myself. However, I think she's doing a horrible job at it. I also believe she is dramatically overestimating the level of interest that no-party voters will have in the Senate primary. Further, Ruben Gallego will attract a significant portion of this no-party electorate that does cast a ballot, especially considering his military bonafides.

Ultimately, I think "the new Maverick" is more likely than not to become "Arizona's former 15th Senator."

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B.S.M. in Split, Croatia: I think we might be missing the obvious answer. Perhaps she is just standing up for what she actually believes. I don't agree with what she is doing, and most Democrats don't agree with what she is doing. But, I think you have eliminated a lot of other possible reasons.

So what is left? In this day and age, it is hard to even consider someone standing up for their principles without considering the political consequences. Most Americans would be happy to have a million dollars in the bank and then just proceed with getting the best job they can after they retire from political office. I doubt she will wind up workin' in a gas station. In the end, I think she will be fine even if she completely disappears from politics.

The truth is probably in there somewhere... (Z)

Biden: The Least Bad Option?

There's been nothing but bad polling news for Joe Biden recently, which made the latest from Marquette something of a surprise. Despite being seven points underwater with respondents, approval-wise (46%/53%), he still trounces his two likeliest 2024 competitors. Against Donald Trump, Biden would get 43% of the vote as compared to 33% for the former president, with 16% saying they would vote for someone else and 6% saying they wouldn't vote. Against Gov. Ron DeSantis (R-FL), Biden comes out ahead 41% to 33%, with 18% saying they would vote for someone else and 8% saying they wouldn't vote.

This comes with the usual caveats that a national preference poll doesn't really predict the electoral tally, that a poll three years out doesn't predict much of anything, and that there's no way that nearly 20% of voters actually vote third-party. Such a study is so un-predictive, and so clearly meant to stir things up and make a few headlines, that it's basically poll porn. Still, it is remarkable that Biden could be so far in the doldrums, and yet both Trump and DeSantis are looking up at him. Further, there's really no plausible 8-10 point gap that can be overcome by Electoral College wackiness. And finally, while this poll may not tell us much about the 2024 presidential election, it might just tell us something about Trump (see below). (Z)

Maybe Trump Has Finally Hit His Floor

Marquette wasn't the only pollster to release something interesting this week; Monmouth also had something intriguing. Apparently, it's a good week for university pollsters whose names start with 'M.' One wonders why Marist is slacking.

Anyhow, the line item that got all the headlines in the Monmouth poll was the one revealing that 17% of Americans think that Donald Trump could still be reinstated as president. That's disappointing, yes, but from where we sit it's getting dangerously close to "dog bites man" news. At this point, everyone should really know that there is some sizable percentage of the Trump-loving electorate that is deluded and has no understanding of civics or the Constitution.

The more interesting result, to us, was that 32% of respondents believe that Joe Biden won due to voter fraud. That's not news either, in and of itself—again, a lot of people are deluded. However, when Monmouth asked that question in November of last year, the percentage of respondents who believed Joe Biden won due to fraud was... 32%. And in July of last year it was 32%, and in March of last year it was 32%, and in January of last year it was 32%, and in November of 2020 it was 32%. That is truly remarkable; the pollster themselves described it as "a trend that tests the definition of statistical coincidence."

Anyhow, forgive us if this is squeezing the data too hard, but if you look at the Monmouth trend, and then you look at Donald Trump's support in the hypothetical 2024 matchup with Biden (33%), it sure looks like one-third of the electorate is going to remain fully on board the S.S. Trump even if it suffers the same fate as the R.M.S. Titanic, but the rest is no longer interested in what he's selling.

There's at least a little bit more evidence that this might be the case, namely the extent to which Trumpy politicians are rebelling against the Dear Leader. The pols consume polls like vampires consume blood, and they also have their ears to the ground and lots of feedback from the grassroots. So, they have as good a sense of how the wind is blowing as anyone. Ron DeSantis, as we've noted several times, has been pushing back against his "mentor" for a few weeks now. Yesterday, former representative and current North Carolina U.S. Senate candidate Mark Walker (R), whom Trump tried to muscle into running for the House instead, officially told the former president to shove it. Trump was thus unable to clear the field for his preferred candidate, Rep. Ted Budd (R-NC).

In addition, Trump endorsed Morgan Ortagus (R) in her race to represent Tennessee in the U.S. House, primarily because Trump would be able to claim he "made" Ortagus if she wins. However, that meant that the endorsement did not go to Robby Starbuck, who has been a MAGA fanatic. This infuriated many of the most MAGAlicious (MAGAty? MAGAcalifragalisticexpialidocious?) members of Congress, including Madison Cawthorn (R-NC) and Matt Gaetz (R-FL), who let their feelings be known. Perhaps they are more committed to Trumpism than they are to Trump?

It's not so surprising that a guy who is so lousy at investing actual capital is also terrible at investing political capital. In any case, if Trump's base really is a firm 33% of the electorate, then that is the RNC's worst nightmare, because it's enough to win the primary, but not enough to win the general. Not too surprising that mainstream Republicans, from Mitch McConnell on down, are pretty obviously trying to push him out the door. (Z)

This Week in Schadenfreude

It's a pretty Trumpy day today—sorry 'bout that. However, when we saw this story, we knew exactly where it was headed. As you may have heard, Melania Trump decided to profit off of her former high position, despite the fact that she was the most invisible First Lady in modern U.S. history. So, she decided to auction off the white hat she wore for the 2018 state visit of French President Emmanuel Macron to the White House. The opening bid for the hat, plus an NFT and a painting of Trump wearing the hat? A cool $250,000. Everyone else in the family is profiting off the presidency, so she figured she should also climb aboard the gravy train. Trump did say that part of the proceeds would go to charity, but refused to specify exactly how much. Such vagueness usually translates to: "I'm going to give the bare minimum necessary to be able to claim that part of the proceeds are going to charity."

The hat only got 5 bids, which is approximately 5 more than it should have gotten. However, and this is where we enter schadenfreude territory, Trump only accepted bids in cryptocurrency. Crypto, which might well be the greatest grift of the 21st century, crashed badly this week. The former first lady, or someone working for her, tried to compensate by extending the auction several times beyond its original "set to end" date. That is a very shady thing to do—arguably fraudulent—and it didn't help anyhow. When the auction ended, the winning bid—which, when made, was enough to satisfy the $250,000 reserve—was worth about $170,000.

In short, a member of a grift-loving family embraced a grifty currency while shamelessly profiting off the presidency and she got burned. Trump isn't going to go without dinner because of this, but she's certainly engendered a fair bit of schadenfreude here. (Z)

Looking Forward: The Readers Predict 2022, Part VI: Congress, the Legislation

And the beat goes on. Here is the list of entries that have already run:

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

The readers' crystal balls were pretty murky when it came to what Congress would do in 2021. Here's what they see for 2022. Remember that we are pre-judging boldness points.

• S.S. in West Hollywood, CA: A smaller BBB bill passes and doesn't generate the enthusiasm Democrats need to keep the House and Senate next November.
  
  Comments: These seem the likeliest outcomes of these two situations, so it's not terribly bold. Boldness: 2/5
  
  
• D.C. in Portland, OR: An infrastructure bill will pass by end of March, but priced around $1.1 trillion. It will include substantial reversal of the 2017 GOP tax scam bill.
  
  Comments: This is a little bolder because of the tight timeline and the tax bill prediction. B: 3/5
  
  
• K.H. in Ypsilanti, MI: Democrats will finally accede to Joe Manchin's demands for both tax increases on wealthy Americans and means testing for benefits in passing a $1.75 trillion BBB plan.
  
  Comments: Even bolder still, since $1.75 trillion seems to be off the table due to inflation fears. B: 4/5
  
  
• B.E. in Sierra Vista, AZ: An exception to the filibuster will be carved out and one of the three voting rights bills will be passed into law. However, due to court challenges, its provisions will have no impact on the 2022 election.
  
  Comments: The filibuster part is pretty bold, which ups the score. B: 3/5
  
  
• A.S. in Brooklyn, NY: Due to Roe vs. Wade being repealed or effectively nullified, Congress will legislate to codify abortion rights. The Senate will attempt to bring back the talking filibuster in all cases to try to pass it, but will be blocked by Kyrsten Sinema (Manchin caves).
  
  Comments: This is quite specific, and Congress tackling abortion seems unlikely to us. Full points. B: 5/5
  
  
• D.S. in Havertown, PA: Joe Manchin will have a "come to Jesus" moment and, having shown his "bipartisan" bonafides by stopping BBB, he will push forward a watered down voting rights bill, agreeing to a carve out reform (NOT elimination) of the filibuster. Kyrsten Sinema will have a mild conniption, but eventually agree to it. This will give the Democrats two platforms to run on in 2022: Voting rights and abortion rights.
  
  Comments: There are a lot of specifics here, plus we doubt Jesus has ever visited West Virginia. Full points for you, too. B: 5/5
  
  
• K.E. in San Bernardino, CA: To save our Democracy, and with the help of Senators Mitt Romney (R-UT), Susan Collins (R-ME) and Lisa Murkowski (R-AK), the Democrats will pass some form of voting rights bill.
  
  Comments: We just don't see one Republican crossing the aisle, much less three. Note that the Electoral Count Act does not count as a voting rights bill. B: 4/5
  
  
• R.H. in Santa Ana, CA: The federal prohibition on cannabis will be repealed, followed by a wave of legalization/regulation in every state except Utah. There will then be a suspicious lack of axe murders across the country, which will lead some to suspect that the documentary Reefer Madness may have been slightly exaggerated. Once Cargill and a few other agricultural giants get into growing cannabis as just another commodity crop, the price of the final product will drop by 75% or more, to barely above the cost of production, which means that the predicted tax bonanza will mostly fail to materialize.
  
  Comments: Again, so many specifics that it would be remarkable if they all came true. In particular, we find it hard to accept that Reefer Madness is anything other than 100% accurate. B: 5/5
  
  
• J.F. in Fort Worth, TX: Absolutely nothing of any consequence will come as the result of the Jan. 6 Committee. The Democrats may be good at "empathy," but they absolutely suck at "outrage" and the Committee will lose traction. The Republicans will continue to treat it as if it were an illegitimate nuisance and the mainstream media will lose interest in it quickly. It will be handed off to Merrick Garland once it's clear that the Democrats have lost both houses of Congress in the midterms.
  
  Comments: Maybe, though this does not seem to be the direction that momentum is heading. B: 3/5
  
  
• M.O. in Arlington, VA: The Jan. 6 Committee will produce findings that will preclude Donald Trump and a number of Republicans from gaining/retaining political office.
  
  Comments: This is pretty bold, since Trump's base seems to forgive anything and everything. B: 4/5
  
  
• D.C. in Portland, OR: The Jan. 6 Committee investigations will increasingly dominate politics throughout the year and will lead to one or more Trump children being indicted.
  
  Comments: Also pretty bold, since there would seem to be many people who are more exposed than the Trump kids. If the indictments reach that far, it's going to be pretty wild. B: 4/5
  
  
• F.B. in Los Angeles, CA: Susan Collins will be "concerned" about something.
  
  Comments: Possibly the only prediction less bold than "Ted Cruz will still suck." B: 0/5

Congress is under the microscope again when we start up next week, with predictions about the people in Congress. (Z)

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