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Saturday Q&A
We got a lot of Supreme Court questions this week, as you might expect. Ask and ye shall receive... answers.
Current Events
S.M. in Watertown, MN, asks: Just out of curiosity, since Ketanji Brown Jackson won't be sworn in until the end of the current Supreme Court term, is there an interim title for Supreme Court Justices? Similar to how a newly elected President is President-elect until Inauguration Day?
V & Z answer: The general custom in these circumstances, when dealing with someone who is appointed rather than elected, is "[X]-designate." And "Justice-designate" is indeed the term that the Supreme Court itself uses (see here for an example).
A.M. in Bradford, England, UK, asks: Judge Ketanji Brown Jackson has now been confirmed but doesn't actually get to assume the job until June (or October). Can that confirmation be rescinded during that time?
V & Z answer: There is no provision for rescinding a confirmed appointment. Once a judge has the "consent" of the Senate, the only option Congress has, should Congress wish to remove them from the bench, is to impeach and convict them.
F.L. in Denton, TX, asks: I am ecstatic at the confirmation of Ketanji Brown Jackson as the next Supreme Court Justice. However, she will not be seated until Stephen Breyer retires, barring some unusual event.
This, however, begs a question. Jackson has been "pre-approved", so to speak. Could not Joe Biden and the Senate pre-approve another candidate (or two) for the next seat(s) that come(s) open, even if the Senate changes hue?
Although some might see this as underhanded, McConnell's Machiavellian (McConnellian?) machinations with Garland and Barrett were far worse. And it could not be called hypocritical.V & Z answer: Is it possible? Certainly. Clearly, a seat does not need to actually be vacant for a nomination to be made and confirmed, as Jackson has completed the process with Stephen Breyer still on the bench. And Joe Biden could say something like: "The Supreme Court is so important that we simply cannot afford long-term vacancies. So, to guard against the very real possibility of an opening, I'm going to nominate and ask for confirmation of a judge right now."
That said, we see three problems with this scheme, which make it very unlikely. The first is that it would further politicize and cheapen the whole process, and it is doubtful that Biden would want to be a part of that.
The second issue is that it would be absolutely essential for all 50 Democrats in the Senate, as it currently stands, to play along. And they might not be willing, since confirming a justice is a difficult and time-consuming process, and since they'd be engaging in that process as something of a stunt. If even one Democrat defected (think: a certain senator from West Virginia), then the nomination would fail, and the administration and the Democratic Party would end up with massive egg on its face without gaining any tangible benefit.
The third issue, and the big one, is this: By the terms of the Constitution, when a Congressional term ends, the slate is wiped clean in terms of pending legislation and other pending business. And by the terms of various laws passed by Congress, and by the way the federal government is set up, confirmations of executive branch officials effectively expire when a presidential term does; there would be no way to stick the next administration with a pre-approved Secretary of State or a pre-approved Attorney General. However, if a judge was confirmed, then it wouldn't be pending business anymore. And, unlike (most) executive branch confirmations, judicial confirmations don't expire when the administration that made them ends. Further, as we note in the previous answer, there is nothing on the books that allows a judicial confirmation to be rescinded, even if the judge has not yet taken their seat on the federal bench.
The upshot is this: If Joe Biden and the Democrats abuse the process in this way, then you can 100% guarantee that the next time the Republicans control the Senate, Mitch McConnell (R-KY) will line up half a dozen Federalist Society-approved judges and will "confirm" them to the Supreme Court, providing SCOTUS with a multi-decade supply, as needed. And he might well make that stick.
J.J. in Des Moines, IA, asks: If the Republicans retake the Senate this fall, and refuse to allow President Biden's (or another Democratic president's) nominees to even get a hearing (let alone come up for a senate vote), what recourse does the President have? Barack Obama seemed to be unwilling to make waves and fight this (probably because he, like many, thought Hillary Clinton would win). But if a hostile Senate simply refuses to let any nominee be considered, even potentially years from the next presidential election, is there anything the president can do?
V & Z answer: There likely isn't a lot that Biden, or any other president, could do. They could file suit in federal court, and argue that timeliness is implied in the Senate's mandate to "advise and consent." A court might even go along with that (although maybe not, as the courts are generally very reluctant to tell Congress how to conduct its business). However, even if the Senate is somehow compelled to hold hearings, or even to take a vote, on a nominee, there's nothing the courts can do to force them to approve that nominee. And so, as long as the hypothetical Republican majority remained unified, they could just vote down any and all candidates.
However, Senate Democrats might be able to do something. If they were willing to go scorched earth, they could bring the Senate to a grinding halt. They could call for 100 adjournments a day, and demand a roll call vote on each one. They could refuse to grant unanimous consent to anything. They could filibuster everything. If the Democrats stayed on message, and said they would not allow any business to be conducted (even, say, passing a budget or raising the debt limit) until the hypothetical vacant SCOTUS seat was filled, that could put serious pressure on Mitch McConnell and the Republicans. But it would take serious party discipline, and it would be risky, if voters are angered by the strategy.
C.L. in Durham, England, UK, asks: At some point in the future, there will be a Republican president at the same time as a Democratic majority in the Senate. Would you advise the majority leader to invoke the McConnell rule and refuse to bring up for a vote a Supreme Court nominee, or to behave like an adult and allow a vote?
V & Z answer: If Senate Majority Leader Chuck Schumer (D-NY), or whichever Democrat ultimately succeeds him, were to call us and ask us for our advice, we would suggest a middle course. To further degrade the process with a game of tit-for-tat is not especially helpful, but it's also political malpractice to play by one set of rules when the other party is playing by a very different set. So, we would tell that future majority leader to offer to consider the Republican nominee, and to give them a hearing and a vote, but only in exchange for the adoption of Senate rules that lay out specific procedures for approving future SCOTUS appointments, This would have to include some sort of set timeline and a three-strikes rule, along the lines of "All Supreme Court nominees get a vote within 60 days, and if the first two nominations fail, then the third one is automatically granted Senate consent."
J.W. from Kansas City, MO, asks: For some reason, I continued to listen to the votes after Ketanji Brown Jackson was voted on, 11-11. There were several others that were 11-11, a few 12-10, maybe one 13-9 and one 19-3 or so.
None of the folks that were voted on were known to me and I do not recall hearing anything about heated or uncomfortable questions from the Republicans on the Committee to those nominees. Would I be correct in guessing two things: (1) There is no need for a kabuki theater act if there is no one there to watch it and (2) Many Republicans are being obstructionist just because they can and want to carp to their supporters about "fighting the good fight"?V & Z answer: We would say those are basically correct assertions. Certainly, some Republicans have legitimate concerns about some nominees. But there are some Republicans who are just being performative for their voters (or their imagined voters, in the case of "presidential candidates" Ted Cruz, R-TX, and Josh Hawley, R-MO). And if there's nobody paying attention, then what's the point of staging a performance?
That said, the Republicans did grill one of the other nominees who was voted upon that day, namely Arianna Freeman, who has been nominated for a seat on the Third Circuit Court of Appeals. Freeman got the third degree because she is a public defender (and has been since 2009). It could be that the Republicans (and it was almost entirely Cruz and Hawley that grilled her) just don't like public defenders. It could be that they think there's profit in sending an e-mail to supporters saying "I did everything I could to stop someone who defends murderers from being made a judge." Or, it could be that Freeman was really just being punished because Ketanji Brown Jackson was also a PD, and the Senators did not wish to open themselves up to the question: "Why did you raise a ruckus about Jackson's PD work, but say nothing about Freeman's PD work?"
R.H.D. in Webster, NY, asks: Had the late Justice Ruth Bader Ginsburg held on until after President Biden was sworn in, would Ketanji Brown Jackson have been the favorite to replace her?
V & Z answer: Almost certainly. Biden committed to a Black woman nominee before there was an actual vacancy, so it really wouldn't have mattered if the actual spot that came open was the one belonging to Ginsburg or the one belonging to Stephen Breyer.
It is true that Jackson may have gotten a little bit of "extra credit" because she once clerked for Breyer. But the fact is that there aren't all that many plausible Black women candidates, due to the still-pretty-overwhelming whiteness of the state and federal judiciaries, and Jackson was pretty obviously the most qualified and the most suitable option. So, we have a hard time believing that her work for Breyer was decisive, and that otherwise the pick would have been, say, J. Michelle Childs or maybe Leondra Kruger.
T.B. in Tallahassee, FL, asks: I'm delighted to read (in your response to J.N. in Freeland) of qualified Latino judges who might get a nomination for a seat on the U.S. Supreme Court. I wonder if there are qualified Native American jurists (both men and women) who might get the nod for such a promotion. Maybe it is because I grew up with a reservation in my county (and many in my state) or that my dad once taught on the Navajo Reservation, but questions related to the concerns and perspectives of citizens who have pre-Columbian North American ancestors are seldom too far from my thinking (as are "Spanish American" concerns [as most locals called themselves where/when I high-schooled]).
Also, has anybody sat on the Supreme Court of the United States who lacked a law degree?V & Z answer: Most of the Native American judges in the United States serve on various tribal courts. We think that those folks would be longshots, just because the body of law they deal with is pretty substantively different than the body of law most other judges deal with. It would be somewhat like appointing a British judge to the Supreme Court. They'd be fine in terms of general process and knowing how legal reasoning works, but would be a little shaky on specifics.
There are also some state-level Native American judges, and a few prominent academicians, but we tend to assume that a potential nominee would come from the federal bench. If so, there are currently six federal judges who are of full or partial Native American descent. It's a fair assumption that Ada E. Brown would not be considered, at least by the current administration, as she is very conservative and was appointed to the bench by Donald Trump. It's also a pretty good guess Frank Howell Seay and Michael Burrage wouldn't be considered, as the former is 83 (appointed by Jimmy Carter) and the latter is 71 (appointed by Bill Clinton), and both have assumed senior status (i.e., retirement).
That leaves Diane Humetewa (57), who was appointed to the United States District Court for the District of Arizona by Barack Obama; Lydia Kay Griggsby (54), who was appointed to the United States Court of Federal Claims by Obama and then promoted to the United States District Court for the District of Maryland by Joe Biden, and Lauren J. King (40), who was appointed to the United States District Court for the Western District of Washington. If a spot opens, and Joe Biden decides to go Native, we assume it would be one of this trio.
B.K. in Dallas, TX, asks: Is there any way John Roberts can control Clarence Thomas? Can he decide which items Thomas oversees?
V & Z answer: All of the judges try to influence one another during their meetings, and through the use of memos and e-mails, so there is that. Beyond that, if Roberts votes with Thomas in the majority, then Roberts gets to decide who writes the opinion, and can assign it to someone other than Thomas. However, that could mean creating a controversial 6-3 majority, which would undermine Roberts' general goal of promoting the message that the Court is just calling balls and strikes. So, he would have to decide what's more important to him.
L.P. in Chippewa Falls, WI, asks: Simple question. If that rabid fox had bitten a anti-vaxxer politician, would that politician refuse the rabies vaccine?
V & Z answer: No. Even the anti-vaxxers in Congress (e.g., Rep. Marjorie Taylor Greene, R-GA) are almost certainly vaccinated. They are OK with risking their voters' lives, but not their own. And anyway, if one of them needed to get the rabies shots, they would have just called it "rabies treatment" or "rabies medicine" as opposed to a "rabies vaccine."
K.S. in Jefferson City, MO, asks: I watched Anderson Cooper as a late-night guest of Stephen Colbert relating his experiences in Ukraine. In being asked about the news that Russians have access to, he said that he spoke to many Ukrainians who had spoken to their families in Russia, and those did not believe they were being shelled based on Russian news. But, he observed, look at the numbers of people in this country who still believe the lies about the 2020 election.
Which made me wonder, how does Russian state TV compare with Fox or other right-wing outlets (or even left-wing, if that case could be made)?V & Z answer: We do not live in Russia, nor do we speak Russian. At least, that is our official story. And so, we don't have direct experience on which to draw.
That said, by all appearances, the Fox-Russian news comparison appears to be a pretty good one. It is true that, in contrast to Fox, much of the Russian media is under the direct ownership/control of the government. However, much like Fox, there was a longstanding effort to hire some real journalists, so as to give credibility to the coverage. And, much like Fox (and, say, Chris Wallace), the real Russian journalists have been quitting left and right, leaving just the propagandists behind. So, the overall tone and tenor of Russia's "news" coverage is not unlike that of Fox.
The main difference is that the Russian government has effectively shut down any competing sources of information, at least those within the country (and thus within the reach of the Putin administration). So, Fox viewers easily can get exposure to alternative sources, even if they choose not to. Russians, at least right now, would have a somewhat harder time, although young Russians are using the Internet, and international sites, to keep informed.
A.L. in Highland Park, NJ, asks: Taking out your enemies' means of production is warfare 101, from Scipio Africanus (allegedly) sowing salt upon the fields of Carthage to the B-17s of the 8th Air Force bombing ball-bearing plants at Schweinfurt. Now that the Ukrainian military is about to come into possession of heavier and longer-range weapons, could they target Russian oil and gas refineries? I don't know the military specifics, ranges of various weapons, etc., well enough to know if it is even in the realm of possibility. But I do know that it would earn them some stern looks from the Germans and Belgians, not to mention Indians. And it would probably drive the cost of gasoline much higher than it's been.
But choking off Russian oil would put a stop-by date on the Russian war machine like no U.N. resolution ever could. Could it happen?V & Z answer: First of all, let us point out that the Scipio Africanus story is definitely apocryphal. (Z) learned ancient history from the late, great Mortimer Chambers, who first started teaching at UCLA in 1949. The salted fields story first got wide circulation thanks to an article written in 1930 by Bertrand Hallward. Chambers could find no primary evidence for the claim, which also didn't make much sense, since such a punishment would have been prohibitively expensive. So, he called up Hallward, who admitted he had no source, and that he was just adapting a Biblical story.
As to the Russian oil, even if it were possible, it would not likely be on the table at the moment. As you point out, many NATO countries would not be pleased to have their energy economy wrecked like this, at least until they've had time to adapt. Further, Ukraine's current posture is that they are just defending themselves. Attacking Russian targets would be taking the offensive, and could be problematic, PR-wise. And finally, it would be a potential environmental disaster, which would also be bad PR.
Should Ukraine eventually decide to pursue this approach, they would likely not be able to do it without getting some help from... well, someone. Though it was not a signatory, Ukraine honored the Intermediate-Range Nuclear Forces Treaty (INFT) that was negotiated by Ronald Reagan and Mikhail Gorbachev, and that was in effect until Donald Trump abandoned it in 2019. And by the terms of that treaty, missiles with a range greater than 300 miles were forbidden. So, that is about the range of the Neptune missiles and the Grom-2 missiles that Ukraine has in its arsenal.
Most of Russia's oil production is in Siberia, about 2,500 miles from Kyiv. In other words, far, far out of range for Ukraine. There are, however, some major refineries that are much closer. Russia's second-biggest refinery is in Kirishi, which is about 600 miles from Kyiv. Its third-largest is in Ryazan, which is about 450 miles from Kyiv. And its fourth-largest is in Nizhny Novgorod, which is about 700 miles from Kyiv. Between them, these refineries process about 1 million barrels of oil a day, which is around 10% of Russia's overall production. So, taking them out would certainly hurt.
Since the INFT was killed off, Ukraine has been working on improving the range of its missiles, and aspires to get them up to 500 miles. Indeed, there's some speculation that part of the reason Russia invaded now was to get the job done before Ukrainian missiles get good enough to reach important targets in Russia. But that 500-mile range isn't going to be achieved anytime soon, by all indications, and it's not enough to really wreck the Russians' oil production. And so that leaves us where we started: If Ukraine is going to try this, they're going to need help from... well, someone.
D.S. in Havertown, PA, asks: This week, Volodymyr Zelenskyy indicated that what happened in Bucha constitutes "genocide." You have written about the meaning of the term, its history, and the criteria for qualifying as such. While Russian action in Bucha were horrifying, they probably don't rise to the level of genocide, but do you believe that they meet one or more of the criteria ("intent," for example)? Had Russia taken over all of Ukraine, as they first expected to do, do you believe that they would've started on a slow road to genocide?
V & Z answer: There is no evidence that Russia has, as its goal, the elimination of the Ukrainian people. In other words, the particular intent that is key to genocide simply does not appear to be present. That means that while the Russians are certainly guilty of war crimes, "genocide" does not apply here, and Zelenskyy is (for understandable reasons) misusing the term. Note that this is not just an academic argument; there are international conventions in place that create specific obligations for the nations of the world if a genocide has taken place.
If you'd like a more thorough assessment (albeit one that reaches this same conclusion), then law professor Sara L. Ochs wrote an op-ed on this very subject for NBC News earlier this week.
Politics
C.S. in Philadelphia, PA, asks: I am hoping (V) and (Z) and perhaps other readers can help me figure out how to best strategize my vote. I'll even take input from the staff mathematician.
I am pro-democracy/pro-fact/anti-cruelness Republican living in purple Pennsylvania hoping some semblance of a sane center-right party returns. My vote in the more local elections doesn't matter much in deep blue Philly, but in the upcoming Senate and Governor races, it does. I am a Dole, Bush, Bush, McCain, Romney, and protest write-in vote of Kasich in 2016 before realizing the vote for Joe Biden was critical for the future of the country. I even voted for Bill Weld in the 2020 primary. Biden is one of the handful of Democrats I have voted for in my lifetime.
So what do I do in the upcoming Republican primary for U.S. Senate and governor? Each candidate seems Trumpier than the next. Is there a "least-bad" option I should vote for, in case they win in the general election, or should I risk voting for the worst so the Democrat can more easily win? Or do I maintain a protest and leave blank/write someone in?
It's concerning that democracy, facts, and cruelness are even on the ballot to begin with.V & Z answer: C'mon, it's a Friday. Surely you know the staff mathematician is "indisposed."
We would say that if you can find a non-Trumpy Republican to vote for in those two primaries, one who represents what you want the Party to be (or what you want it to return to), you should vote for them. That person is not likely to win, but at least it's a statement that there are still normal, center-right, non-authoritarian-populist Republicans out there. Then, if and when nutty Republicans get the nominations, you should vote for the Democrats, to send the message that nutty Republicans are not acceptable to you.
If you can't abide by any of the Republican candidates, then you should probably reregister as a Democrat, and give your primary vote to the Democrats you think are most likely to win the general election (which is almost certainly John Fetterman for the Senate and Josh Shapiro for governor). The deadline to re-register in Pennsylvania in order to be able to vote in the primaries is May 2.
M.B. in Cleveland, OH, asks: The time has come to request my mail-in ballot for the Ohio primary, still scheduled for May 3 as I write this. There are no competitive races statewide in the Democratic primary, but a real drama in the Republican U.S. Senate primary, as they fight to replace retiring center-right Republican Rob Portman. My question is: What is my best strategy for a primary vote? Options:
1. Request a Democratic ballot and vote enthusiastically for Rep. Tim Ryan (D-OH), to increase the Democratic vote total and support the narrative that he has a real chance, because look at how many votes he got in the primary.
2. DIY ranked-choice voting: Request a Republican ballot and vote for the one sane Republican in the race, state senator Matt Dolan (currently polling around 8%, but no one is polling above 20%, so small shifts will have an impact and the winner might not break 25%). If enough Democrats do this, it's like choosing our second choice. If Dolan wins the primary, he's an instant favorite for the general, meaning there's about an 80-90% chance that the seat would stay Republican but not be occupied by a lunatic.
3. Do a little Ratfu**ing. Request a Republican ballot and vote for the largest lunatic (toss-up between Josh Mandel and J.D. Vance) with the goal of saddling the Republicans with the least electable candidate. Tim Ryan would definitely have a fighting chance against either of these bozos, but the downside is that there's about a 50% chance that the lunatic will win the general election and "represent" Ohio for at least six years.What would you say the best strategy is?
V & Z answer: Our view is that Tim Ryan has the nomination locked up, and nobody really pays much attention to primary election balloting, because there are so many variables in play. So, voting for him has no real impact.
Meanwhile, there are already plenty of nutty senators, and one more isn't going to make much difference. On the other hand, for Democratic Party members, one more Democratic senator could make all the difference in the world (imagine if there were 51 or 52 Democrats right now, instead of 50). So, the cost-benefit analysis suggests that you should be doing everything possible to get Ryan elected, regardless of the risks. And that means voting for the least electable of the major Republican candidates (probably J.D. Vance).
This, and the answer above, are just our opinions, of course. If readers have thoughts or advice for C.S. in Philadelphia or M.B. in Cleveland, whether you agree or disagree with our assessments. please do let us know. If we hear from folks, we'll run some of the responses tomorrow.
P.L. in Denver, CO, asks: Why is Louis DeJoy still the Postmaster General? What has to happen to rid of us this man?
V & Z answer: It is improbable that Joe Biden made any quid pro quo arrangements when he appointed members of the U.S. Postal Board of Governors (e.g., "If I appoint you, you have to fire DeJoy"). That would be somewhat unethical, and would be pretty politically risky if one of them spilled the beans. Undoubtedly, his appointees knew that Biden (and pretty much all Democrats) would like to see DeJoy go.
Anyhow, besides DeJoy, there are currently nine people on the Board. Five of them are Donald Trump appointees, including John M. Barger, who is a close ally of DeJoy, and whose term has expired, but who has agreed to stay on the job until he is replaced. Four of them are Joe Biden appointees.
At the moment, Biden appointees Derek Kan and Dan Tangherlini are awaiting confirmation. Once one of them is confirmed, Barger will step down, and Biden appointees will be in the majority, 5-4. Once they are both confirmed, then Biden appointees will have a majority, 6-4. Presumably, if DeJoy is going to be canned, it will happen not long thereafter.
P.N. in Austin, TX, asks: In response to your item "Ivanka Speaks," I ask, at what point should we start getting worried that no one will charge Donald Trump with a crime? When exactly will I need to get my pitchfork sharpened? While I'm inclined to agree with your assessment that it's unlikely Trump dodges the long arm of the law, I'd like to properly calibrate my patience.
V & Z answer: The bureaucracy is leery of interfering with elections and, indeed, is legally forbidden from doing do in many cases. Sometimes they botch their implementation of that general imperative (see Comey, James), but they generally try their best to keep it in mind.
The 2024 cycle will heat up in mid-2023. At that point, Donald Trump will either be a candidate, or will be teasing a run so he can keep fleecing his followers. The various prosecutors and functionaries will be very leery of going after him at that point, since that would interfering with an election. And if they wait until November 2024, then it will probably be too late, since statutes of limitations will start to run out, and witnesses will die or their memories will get fuzzy, and he might end up president, with the (apparent) 4-year Get out of Jail Free card that entails.
Add it up, and we'd guess that if he makes it to September 1 of next year without getting popped, he's probably home free.
S.K. in Buda, TX, asks: As someone who both has significant student loan debt and someone who took a substantial pay cut due to COVID, I was thrilled to hear that the pause on payment and interests on federal student loans would be extended yet again to August. I cannot imagine that President Biden will let that financial bomb drop for millions of borrowers right before the midterms, so I would bet they get extended again. I also doubt that another president would want to be the one that restarts payments after years of pauses. What are the chances that we're seeing the effective cancellation of student debt through inaction? Could "I have $50,000 in student loans" just be a funny bit of trivia in the future without real consequences?
V & Z answer: We don't like to burst bubbles, but nearly all Republican presidents would be more than happy to reinstitute payments. In general, that Party's base is suspicious of colleges and universities, and is bothered by the notion of pointy-headed snobs getting to attend school for four years on the government's dime. So, "They borrowed the money, and now I will make sure they pay it back" is actually a net positive for a Republican president.
It is possible that Biden is thinking about the midterms, but we would actually guess two other considerations are more significant. The first is that the economy is problematic right now, and this is not the time to be adding additional X-factors to the equation. Better to just remain in a holding pattern until things settle down. The second is that if anyone is going to derive political benefit from this, it's a president and not a member of Congress. So, if there is going to be an amnesty, all signs point to an announcement sometime in late 2023 or early 2024.
R.C. in Des Moines, IA, asks: What are the chances of Sarah Palin not only winning the House seat in Alaska but then being elected Speaker?
V & Z answer: Zero. Most Republicans in Congress know that she, and Lauren Boebert (R-CO), and Matt Gaetz (R-FL), and Madison Cawthorn (R-NC) and Marjorie Taylor Greene and their ilk are nitwits who have no interest in governing, and no particular idea how to do so anyhow, and are interested only in attracting headlines and getting camera time.
The Republicans who hold these folks in low regard may not speak up very often, since much of the base loves to watch the provocateurs "own the libs." But those same Republicans are not going to give up their own aspirations, or to allow the Party to be made a laughingstock, by allowing some Sarah-come-lately sweep in and take over one of the four or five most important posts in the federal government. And certainly, enough of them are civic-minded enough to know that putting Palin two heartbeats from the presidency is almost as dangerous as putting her one heartbeat from the presidency.
Civics
D.T. in San Jose, CA, asks: Does the executive branch have much discretion regarding distribution of funds to specific states? I realize that Congress writes the budget, but can the White House attach "conditions" to the money?
In recent years, many red states have been frivolously wasting the resources of the court system by passing blatantly unconstitutional laws. For the most part, there has been no way to discourage this behavior, or hold the states accountable. My idea, is for the executive branch to start issuing "fines" for this behavior, in the form of federal funding being withheld. Somewhat similar to SLAPP fines for bad-faith lawsuits.
While I realize that Joe Biden would never actually go for this, would it be legal for the White House to theoretically pursue such a scheme? Something like "Any state that passes abortion restrictions, which are subsequently struck down by multiple federal courts, will lose 10% of their Medicaid funds for a year." Or "If you violate the Voting Rights Act, the Department of Transportation will cancel two highway projects in your state."
This is a very cynical solution. But is there a better way to discourage states from passing bad-faith legislation?V & Z answer: Congress has the power of the purse, and there is much that they can do, if they so choose. It is entirely legal for them to pass legislation that makes federal funding contingent on doing [X], or on not doing [Y].
As to the president, however, there is little they can do. For many years, particularly in the first two-thirds of the 20th century, presidents actually did use the withholding of funds to punish misbehaving states. John F. Kennedy, for example, threatened to withhold highway funding from Southern states if they did not integrate their buses, trains, etc. And Lyndon B. Johnson did the same, except with education funding and schools. This is called impoundment.
However, in 1969, Richard Nixon came along, and he used impoundment a little too enthusiastically. The problem was not that he tried to whip recalcitrant states into shape, it's that he used impoundment to undermine federal programs he did not agree with, even if Congress had funded them. And so, Congress passed the Congressional Budget and Impoundment Control Act of 1974, which took away the president's impoundment power.
Every president since Nixon has asked to have the power restored, and undoubtedly Joe Biden would like that too, but Congress had never budged. And until Congress does budge, there is relatively little room for Biden or any other president to operate. Some federal funding is at the discretion of the president, like disaster relief, but that funding is only a small portion of the overall budget.
T.G. in College Place, WA, asks: I adhere to a religious faith. I'd call myself a "member" of that faith. But I'd consider it anathema and unconstitutional to list my religion next to my name on a ballot. And the government supports me on this.
For many people today, party allegiance/membership to a political party is as strong if not stronger than faith allegiance. News stories from this very week demonstrated how "fealty to party" can trump individual preferences (pun). Odd that we nod as if that's expected, but grilled the Catholic JFK and the LDS member Mitt Romney regarding where their fealty lay.
I don't understand why placing any letter that indicates faith or any preference for any belief system next to ballot names is obviously illegal, and yet it's ok to put R, D, and I next to candidates names. Why do my taxpayer dollars fund that advertising message on ballots? Why does the constitution allow this?
(My experience is with Washington State ballots; maybe other states already don't allow that?)V & Z answer: To start with your final question, all states allow party preference to appear on ballots (except in nonpartisan elections, like most mayoral races). The last state to join the club was Virginia, in 2000.
Anyhow, there has been much wrangling about what can and cannot appear on ballots. In general, the jurisprudence says that something directly relevant to the election (like party preference) is acceptable, but that anything else is unacceptable "advertising." Some readers may recall, for example, the legal battle that Jimmy Carter had with a couple of states that wanted to print his name as James Carter, thinking that the folksy "Jimmy" was effectively a form of marketing. Carter won those suits.
As to putting party affiliation on ballots, studies have shown that doing so has two very clear effects. The first is that it increases partisanship. Since Republicans, in particular, rely on partisanship and tribal loyalties, they like this effect. The second is that it significantly reduces the number of voters who vote on the big races and skip all the others (this phenomenon is known as roll-off). More specifically, it significantly reduces the tendency of Black voters to skip the down-ballot races. Since Democrats, in particular, rely on Black votes, they like this effect.
So you have a situation that Republicans like for one reason, and that Democrats like for another. Generally, when both parties are happy with the status quo, change is not likely.
C.L. in Boulder, CO, asks: As someone who grew up in Louisiana with its "jungle general" elections and attended college in California before the adoption of its "jungle primary," I've always understood the difference between the two systems to be that in LA (that's Louisiana, not Los Angeles) if you got more than 50% in the election, you straight-up won, but in CA even if one candidate got 97% of the vote, the top-two vote-getters had to go for another round in the general election. Apparently, the special election in CA's 22nd congressional district is being run as a Louisiana "jungle general." Do I have this right? Thanks, CA, for throwing a wench in the process just when I thought I totally understood it.
V & Z answer: As regards Louisiana, they are the only state that actually has a "jungle" system. On the date of the general election, all of the candidates for a particular office appear on the ballot. If one of them gets a majority, then that's it. If not, then the top two finishers go to a runoff.
California's system (and now Alaska's system, and it's also used for some elections in Washington) is properly called a top-two primary. It differs from Louisiana in two ways: (1) the primary is held prior to the date of the general election, and the runoff is held on the day of the general election, and (2) getting 50% of the vote in the first round of voting does not allow a candidate to avoid a second round of voting.
For the special election, however, California is indeed using Louisiana-style "jungle" rules. This is because the office remains vacant until someone wins, and if avoiding a likely-to-be-unnecessary runoff means the seat is filled a month earlier, then that's a worthwhile tradeoff.
History
H.F. in Pittsburgh, PA, asks: What's your professional opinion of the new Ken Burns PBS documentary about Benjamin Franklin?
V & Z answer: (Z) is not much of a one for crapping on Ken Burns. In the end, Burns is not an academic and he's not in the business of analysis. No, he's a popular entertainer who puts together narrative history, in visual form, for a broad audience.
And in the idiom in which Burns works, he's very good, and that includes the Franklin documentary. It does a pretty good job of communicating the story of Franklin's life in an engaging, accessible way. And compared to many other popular documentarians, Burns actually works hard to keep the cheesiness factor under control. For example, he does not make use of reenactments using modern actors impersonating historical figures. The History Channel, by contrast, uses this technique all the time, and it is just godawful every time they do it.
Incidentally, you didn't directly ask, but although (Z) is a Civil War historian, he does not regard The Civil War as Burns' best work. While an accomplishment, to be sure, that was a relatively early work in Burns career, and it's showing its age (30+ years) in many ways. No, Burns' best is The Roosevelts.
D.F. in Norcross, GA, asks: This question is mainly for resident historian (Z): As part of your answer to the question from R.H.D. in Webster, about what criteria would constitute World War III, you wrote:
That said, if you wanted to be precise, the three wars that have been described as "world wars," namely the French and Indian War (known as the Seven Years' War outside of the U.S.), World War I, and World War II. And what those three wars had in common was that major combat took place on multiple fronts that were located on multiple continents. So, for the Russia-Ukraine situation to really and truly be a world war, it would have to be waged substantially in both Europe and Asia, and probably in Africa (or the Mediterranean) as well.I've read and heard multiple historians and researchers assert over the years that the American Revolutionary War was just part of a more global conflict involving not only the American rebels but the French, Dutch and Spanish, and it stretched to the Caribbean, Europe and even all the way to India. So my question is, from your perspective, would you consider the American Revolution merely an extension of the French and Indian (i.e., Seven Years) War, even though there was a gap of more than a decade between the end of the former and the start of armed hostilities in the latter? Or would you consider them separate, and thus make it four wars that could be truly described as "world wars"?
V & Z answer: Let's start by noting that (Z)'s specialty is the 19th and 20th centuries rather than the 18th, and the U.S. rather than transnational studies, so this is a wee bit outside his area of expertise. But certainly, the Revolutionary War and the Seven Years' War cannot be blended together as one conflict; the 13-year gap between the two is just too great to overlook. Heck, the gap between the First and Second World Wars was just 18 years (1919-37), and nobody would blend those two together as one.
But if someone wants to argue that the Revolutionary War, combined with the Anglo-Spanish War, the Fourth Anglo-Dutch War, and the Second Anglo-Mysore War constitutes a world war, (Z) doesn't find that objectionable.
J.H. in Boston, MA, asks: You wrote that Joe Biden is a party man who knows that Harry S. Truman and Lyndon B. Johnson declined to run for the Democratic nomination, knowing how anemic their support was. But remind me, after they stepped aside and the party chose an alternate, which party won in a landslide? Answer: Both Adlai Stevenson and Hubert Humphrey lost in some of the most lopsided presidential landslides ever seen.
All polling indicates that Biden is more popular than, for example, Kamala Harris. Is Joe Biden stepping down really a viable option for beating Trump or whoever the Republicans put up in 2024?V & Z answer: Well, in 1952, the Democrats had held the White House for 20 years, and the Republican was the wildly popular general who won World War II. It's true that Adlai Stevenson got trounced, but Harry S. Truman would likely have been trounced even worse. As to 1968, we think you might be confusing that election with 1972 (Nixon landslide). In '68, Nixon won 43.4% of the vote and Humphrey won 42.7%. Humphrey was surging in the polls when the election took place, and if a couple hundred thousand votes across a handful of states had gone the other way, or if the election had been held a few weeks later, Humphrey would have won.
There's also the election of 1932, where an incumbent (Herbert Hoover) tried to keep his job despite his obvious unpopularity and he got punched in the mouth. You might also put the election of 1980 in that category, although Jimmy Carter's prospects in spring of 1980 were much better than Hoover's were in spring of 1932.
Anyhow, as a fellow who will be on the other side of 80 by 2024, we think that Biden would not subject himself and the party to a reelection campaign if it's likely to be futile. Stepping aside may not improve the Party's chances very much, since the candidate would still basically be running on Biden's record. But if it improves the Party's chances a little, that's probably good enough.
J.D. in Ames, IA, asks: You wrote: "One of the main themes of the Ronald Reagan presidency was that government is basically incompetent. The Republicans have taken this notion to heart ever since."
This was an eye opener for me because it threw some light upon conversations I've had with elder Republican-minded family members. A consistent topic they rail on is how terribly inefficient the government is and how the "bureaucratic blender" slows everything down to a slog. Can you expand a little bit more on how the Reagan administration was able to build this narrative? I'm already familiar with the fabricated "welfare queen" story, but are there others? To combat this line of thinking, in your opinion what government institutions are particularly popular and/or efficient?V & Z answer: This was a recurrent and oft-repeated message of Reagan's presidency in the same way that anti-immigrant sentiment was a recurring element of Donald Trump's presidency and political career. So, there's plenty of verbiage from Reagan on the subject.
That said, Reagan was pretty good at coming up with sound bites that resonated with his base. And the "government is bad" soundbite that really took hold, such that we've seen or heard it repeated literally hundreds of times, was uttered at a press conference on August 12, 1986. On that day, the Gipper said: "The nine most terrifying words in the English language are 'I'm from the government and I'm here to help.'" Here is the clip of him saying that, if you are interested.
As with Trump and "Make America Great Again," Reagan didn't come up with this himself. The basic phrase was around by the mid-1970s, and from sources that are not the 40th president. What this means is that Reagan, like Trump, wasn't leading so much as he was riding an already-existing sentiment that existed among some members of his base. That said, Reagan really distilled it down with his "welfare queens" and his "nine most terrifying words" and therefore really made it stick.
As to popular and efficient government programs and agencies, the good people at Gallup and Pew Research sometimes conduct polls on this point, and they consistently show that 70+% of the American people have favorable opinions of Social Security, Medicare, the U.S. Postal Service, the CDC, the Census Bureau, the Federal Reserve, and NASA. Social Security and the USPS, in particular, usually crack 90% favorable.
Gallimaufry
B.F. in Spokane, WA, asks: In regards to the question from B.C. in Soldotna about The Hill ditching Disqus, and your response that the comment section may have been driving people away from the site: I agree that the comment section on the site had turned into a sewer. However, there was no requirement for someone reading the stories to then click into the comment section. Now there is no comment section, and I would be curious to see if traffic to that site actually lessens as those who went there to "debate" go to other sites instead.
I would also point out that Yahoo News deleted its comments section over a year ago. I wonder how their traffic has fared.V & Z answer: Finding reliable numbers on changing traffic patterns at these various sites is a basically impossible task. Tracking web traffic is an imprecise science at best, and the people who have the best information, namely the staffers at the websites themselves, are not in the habit of sharing. Further, there are many factors that can affect traffic to a site, and so isolating the effect of turning comments on/off would not be easy. For example, ESPN.com killed its comments a couple of years ago, in January of 2020. Assuming traffic dropped thereafter, was it due to the end of the comments section, or due to the NFL season being over? Who knows?
With that said, we are willing to venture three guesses that we think are on solid ground. First, you can be very sure that these sites studied the comments issue six ways to Sunday, and had excellent evidence that getting rid of them would be a net positive, or at least a wash.
Second, as with nearly every public forum like this, we would guess (and, in fact, we saw with our own eyes) that the comments were dominated by a fairly small number of trolls, loudmouths, and loudmouth trolls. If the commenters move on to a different site, relatively little readership is lost, we think.
Third, we imagine that there was some concern about potential future harm that might be done to the site because of the comments section. If changes are made to the relevant laws, then they could find themselves on the hook for libel. Or, an online discussion could spill into real life and end up with someone murdered. If the site isn't benefiting from the comments anyhow, then why take on the costs and the risks of having them?
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