Alito Freezes the Abortion Pill Decisions for 5 Days

The fight over the decision by Texas District Judge Matthew Kacsmaryk to ban mifepristone has reached the Supreme Court. Late Friday, Justice Samuel Alito announced (not leaked, but actually announced) that he was staying the decision and the appeal to the Fifth Circuit until Wednesday to give the Supreme Court time to consider emergency appeals from the Biden administration and Danco, the company that makes the brand-name Mifeprex. The stay should not be interpreted as anything more than "we need a few days to read the appeals so we can decide what to do." As a result of the stay, the status quo ante is restored until Wednesday.

To recap the situation, Kacsmaryk made some decisions that are legally completely indefensible. For one, the statute of limitations for challenging the FDA's decision to approve mifepristone ran out 17 years ago. Any first-year law student who was awake in class would know that a lawsuit filed 17 years too late should have been instantly rejected. For another, the people suing have virtually no basis for claiming they have standing to sue since they have not been injured in any way by mifepristone's availability. Some of the doctors claimed they might have to deal with a patient who took mifepristone some day, but you can't claim a possible future injury as standing to sue. The judge just made it all up as he went along.

The New Orleans-based U.S. Court of Appeals for the Fifth Circuit took the case and ruled almost immediately. Its ruling was almost as odd, staying part of Kacsmaryk's order and making up new rules on its own. For example, it decided to allow mifepristone to be used up to 7 weeks of pregnancy instead of 10 but it banned mail-order sales. Also, pregnant women will have to visit a physician three times to get a prescription. No other drug has such a requirement.

All of this is on hold now until Wednesday, when the Supreme Court will either make a decision, schedule oral hearings, or extend the temporary stay a bit longer. (V)

Pompeo Is Out

It took a while, but eventually Mike Pompeo came to the same conclusion we did last year: It would take a miracle on the order of Moses parting the Red Sea for him to be elected president. On Friday, Pompeo told Fox News' Bret Baier that he will not run for president in 2024. In all fairness to Pompeo, we didn't check with God before coming to our conclusion. Waiting for Him slows down the process quite a bit, as He's a busy guy, what with so many POTUS wannabes asking for avice.

Pompeo explained his decision to Baier by saying: "This isn't our moment." Definitely true. He is too closely associated with Donald Trump, having served as his secretary of state, to run in the not-Trump lane. Besides, former Arkansas governor Asa Hutchinson is already there and is less Trumpy. The Trump lane is already full, with Trump and Gov. Ron DeSantis (R-FL) hogging the road. There is simply no place for Pompeo. The fact that the former secretary realizes this is to his credit. In contrast, Sen. Tim Scott (R-SC) is barrelling full speed ahead and will make a fool of himself when he comes in below 5% in Iowa, if he lasts that long.

Note that Pompeo did not say: "I don't want to be president." If Trump runs in 2024 and is crushed, the fever might break and in 2028 it might be possible for a normal conservative, like Pompeo, to get the GOP nomination. Interestingly enough, Pompeo did not endorse anyone else for the nomination, not even his old boss. He understands that picking a loser now won't help him in 2028, so the best strategy is to lay low for a while and then endorse the nominee after it is clear who that will be.

Pompeo is definitely thinking about 2028 already. He told Baier: "To those of you this announcement disappoints, my apologies. And to those of you this thrills, know that I'm 59 years old. There remain many more opportunities for which the timing might be more fitting as presidential leadership becomes even more necessary." Note that bit about the "timing might be more fitting." In case you lost your secret decoder ring, that time is 2028. (V)

Let the Politicking Begin

As we wrote on Friday, Sen. Dianne Feinstein (D-CA) is becoming an ever-bigger problem for Senate Democrats. They need her vote to advance judges and other nominees through the Judiciary Committee, and under current rules can't do that very easily while she is holed up in California. In addition, many Democrats see her as a holdover from a long-gone era, when Republicans bargained in good faith and you could make deals with them. She is now out of step with her constituents who want to confront them, not make nice to them. Also, with a net worth of $90 million (the 6th richest senator), she is out of touch with nearly everyone in the country when it comes to economics.

One person causing Feinstein and the Democrats a lot of anguish is, as we noted last week, a prominent Democrat. Namely Rep. Ro Khanna (D-CA), who represents CA-47, which covers part of Silicon Valley and includes the corporate headquarters of Apple, Intel, and Yahoo, among other tech companies. It is the wealthiest congressional district in the country, with a median household income of $157,000. Khanna has come out publicly demanding that Feinstein resign now.

Does Apple or Intel want that? Nah. There is something else at play here. If Feinstein were to resign, Gov. Gavin Newsom (D-CA) would get to appoint her replacement, who would serve until Jan. 3, 2025, when the winner of the 2024 California Senate election would take over. Newsom has promised that he would appoint a Black woman if he gets the chance, in part because the current Senate has no Black women in it. Does Khanna know that? Yup. In fact, he is co-chair of the campaign of Rep. Barbara Lee (D-CA), who is running for the Senate. Lee is Black. Khanna apparently thinks that if Feinstein is pushed out, Newsom will have to appoint Lee, giving her a huge boost. Until last November, Newsom would have had the option of appointing of then-Rep. Karen Bass (D-CA), but now that she is mayor of Los Angeles, that is exceedingly unlikey.

If Lee hadn't announced a Senate run of her own, Newsom could have picked her, but he doesn't want to play favorites among the Senate candidates, so she is probably off the table now, regardless of what Khanna thinks.

But there is at least one other high-profile female Black representative Newsom could pick: Rep. Maxine Waters (D-CA). Waters is very progressive, so her appointment would please part of his base. She will be 85 in August, so for her, a year and a half in the Senate would be a nice capstone on her long congressional career. She is the ranking member of the House Banking Committee, and shows no signs that her age is hampering her in any way. Yes, there would be "youth movement" jokes about replacing an 89-year-old with an 85-year-old, but those would pass. Her Los Angeles-based district is D+32, so some other Democrat would win the resulting special election with ease.

There is one other conceivable outcome of a Feinstein resignation that is unlikely, but worth noting. Suppose Newsom were to appoint Kamala Harris to the Senate. Since she has already been a senator, she could hit the ground running. She could announce that Cactus Jack Garner was right and the vice presidency is indeed not worth a bucket of warm p**s. Then, in 2028, she could run for the White House if she wants to without having to give up her Senate seat, assuming she wins a full term in 2024.

Getting Harris off the ticket gracefully would solve a problem for Joe Biden. Some voters might be hesitant to vote for him due to his age and their fear that Harris could finish Biden's second term for him. If Harris were moved off to the Senate, Black women voters would probably not see it as a demotion, since Harris could still run for president in 2028 as a sitting senator. If she failed to get the nomination, she could still serve in the Senate for another 30 years. In this scenario, Biden could pick a new running mate who wouldn't scare off many voters and who could bring something extra to the ticket—for example, Gov. Gretchen Whitmer (D-MI). Of course, to pull this off, Newsom, Harris, and Biden would all have to be on board, but there is something in this for each of them.

Another problem the Democrats are having in the Feinstein mess is accusations of a double standard. When Sen. John Fetterman (D-PA) took a leave of absence to fight depression, nobody called for him to resign. When Sen. Mitch McConnell (R-KY) had an accident that led to a concussion, nobody called for him to resign. When Pat Leahy had hip surgery last year and missed many votes, nobody called for him to resign. Hell, when Strom Thurmond got to the point he couldn't tell an elephant from a donkey, or even from a box of corn flakes, nobody was demanding his resignation. The story then was that if the voters wanted him to retire, they could arrange that. But when a woman gets sick, out she must go.

Among other Democrats who detected a double standard here were one of Feinstein's constituents: Rep. Nancy Pelosi (D-CA). She said: "I don't know what political agendas are at work that are going after Sen. Feinstein in that way. I've never seen them go after a man who was sick in the Senate in that way."

Still, male senators do sometimes resign for health reasons. Johnny Isakson resigned in 2019, citing his diagnosis of Parkinson's disease. Feinstein could go somewhat gracefully by citing her battle against shingles. It is up to her, but this story is not over yet. (V)

Trump Is Deposed Again

Donald Trump has so many legal problems that we sometimes miss some of them. One that sort of snuck under the radar last week was the civil lawsuit New York AG Letitia James is pursuing. She is claiming that when offering his properties to banks as collateral for loans, he said they were worth a king's ransom, but when talking to the local property tax assessor, he said that were rat- and cockroach-infested garbage dumps that were worth virtually nothing. James is suing him for $250 million over this inconsistency.

The suit also accuses three of his adult children of helping him commit fraud. We won't tell you which ones, but we'll give you a hint: When was the last time you saw Tiffany hanging out with her father?

Trump was deposed for 7 hours last week at James' Lower Manhattan office, not far from where he was arraigned earlier in the week. It is a good thing Trump has a place to stay while in Manhattan, otherwise he might end up with substantial hotel bills. It is not known if he pleaded the Fifth Amendment hundreds of times, as it he did in his first deposition on the case, but he might have. The one problem with that is that in a civil suit filed by an AG, it is legal (and common) for the AG to tell the jury: "In his deposition the defendant took the Fifth 400 times. Do you think he would have done that if he were innocent?" A jury cannot infer guilt from pleading the Fifth in a criminal case, but they can in a civil case. Trump's lawyers surely told him this so he might not have clammed up completely last week. James did not depose him personally, but she has plenty of smart lawyers on her staff to handle this kind of thing.

Trump's lawyers, including Christopher Kise and Alina Habba, said there was absolutely no case and there was no fraud. Kise also said the transactions in questions were also wildly profitable for the banks. Of course, that is neither here nor there. If Trump gave a bank a property actually worth only $20 million to hold for a $100-million loan and didn't default, then it didn't actually hurt the bank that he lied about the property. But the core of the case is about his then turning around and telling the property-tax assessor that it was worth $1 million, thus lowering his tax bill. That's the big fraud. Lying to a bank is also fraud, but a jury member could think: "He paid off the loan, so no one was harmed." His illegally lowering his taxes is easier to explain to a jury. (V)

Glenn Youngkin Is Probably Not Running for President in 2024

A lot of Republicans saw Gov. Glenn Youngkin (R-VA) as the future of their party. He is as conservative as any other Republican governor, but sane, easy going, and good looking in a lovely fleece. The idea here is: Put the same old politics in a much more attractive package and you have a winner. Brilliant, no? They tend to forget that he beat a tired old Democratic retread by only 2 points in low-turnout, off-year election. Still, he's not a loose cannon like Donald Trump or venal like Ron DeSantis, so he'd be a shoo-in for president, right?

The only fly in the ointment is that he doesn't seem to be interested, at least not now. Youngkin hasn't done the full Sherman, but has said that his entire focus now is on the Virginia legislative elections in Nov. 2023. The real reason for this lack of interest is that he hasn't achieved much of anything since being inaugurated in Jan. 2022. This lack of achievement is not due to lack of ambition. He has plenty of that. What he doesn't have is 21 seats in the state Senate. The Democrats control 22 of the 40 seats and are not the slightest bit interested in helping his career. Republicans control 52 of the seats in 100-member General Assembly. Without control of the whole legislature, he can't pull off all the stunts that Ron DeSantis can and has little to show for his time as governor.

Youngkin's goal is to capture majorities in both chambers of the state legislature in November, when all 140 seats are on the line. Then he could begin a whirlwind of bills banning abortion, allowing parents to ban books in school libraries, fighting woke corporations, and the whole nine yards. But in the best case, that couldn't begin until Jan. 2024, when the new legislature is seated. Furthermore, it is certainly not a given that the Republicans will capture both chambers of the legislature, especially if abortion is the main issue in the legislative elections. In any event, by January, he would have missed the initial Republican debates and the Iowa caucuses would be just a couple of weeks in the future. He is currently polling below 1%, and it might not be so easy to make that up in 3 or 4 weeks.

It appears that Youngkin is serious about not running since he is not doing the things candidates do. He even said: "Listen, I didn't write a book, and I'm not in Iowa or New Hampshire or South Carolina." His top political strategists, Jeff Roe and Kristin Davison, both signed on to help DeSantis. They know what he is really thinking. If Youngkin's game plan were to win the legislature, make a sharp right turn the first week of January 2024, and then jump into the Iowa or New Hampshire races, they wouldn't have jumped ship.

What is also a factor here is that the legislative maps are brand new, without regard to current incumbents, so anything could happen, including Democratic control of both chambers. Of course, if the Republicans win massive landslides in both chambers in November, then he will be seen as a giant killer, and might be able to jump in at the last minute and do well. This means a lot is riding on the Virginia legislative elections, including how powerful a force abortion is in elections for state legislatures. (V)

Tomorrow Is the Big Day

So far, Fox and Donald Trump have gotten away with lying all they want to with no consequences. That could change this month. Tomorrow the defamation trial Dominion Voting Systems v. Fox News begins. Next week it is E. Jean Carroll v. Donald Trump. Will justice be served? Stay tuned. Except not to Fox.

In the Dominion case, the First Amendment is also on trial. Fox is contending that a decision for Dominion would destroy freedom of the press. However, the judge has already ruled that is not an issue and all the jury has to decide is whether Fox hosts lied intentionally or by accident. Legal experts say that the e-mails and text messages Dominion will show at the trial make a pretty strong case that the hosts knew exactly what they were doing and were lying because management thought that telling the truth would offend their audience. So they lied for business reasons. The First Amendment does not give private corporations the right to defame someone or some company because it is better for business that way.

Suppose Dominion wins and the jury awards it most or all of the $1.6 billion it is asking for in actual damages plus some punitive damages on top of that? Would it bankrupt the News Corp, which owns Fox? Probably not, but it might force Fox to be a lot more cautious about lying in the future (or at least be more cautious about documenting the lies in e-mails and text messages). Similar suits by Dominion against Newsmax and OANN definitely could bankrupt them, however. Oh, and a victory by Dominion would probably make Fox think carefully about settling a $2.7-billion lawsuit from Smartmatic out of court. Smartmatic certainly wants to restore its good name, but an offer of $1 billion in cash to be paid within 24 hours of signing the agreement with no hassle could be tempting.

A Fox win would undoubtedly open the floodgates. Then management would have no fear and urge the hosts to let 'er rip and give the viewers what they want with no regard for the truth at all since there won't be any penalties no matter what they say on air. Catherine Ross, a professor at George Washington University specializing in the First Amendment, said: "In my opinion, [a Fox victory] would open our society up to a return to what used to be referred to as the yellow journalism of the late 19th century, like the Hearst newspapers that led to wars."

The trial will begin tomorrow at 9 a.m. ET. Well, assuming it begins at all. Late Sunday, it was reported that there will be last-minute talks today in an effort to avoid a trial. It is extremely unlikely that Fox will willingly admit to wrongdoing, so the question is presumably whether there is enough money to make it worthwhile to Dominion to settle, given that their reputation and their business have been permanently damaged. IF they make $100 million per year (which is a nice round number, but is presumably high), and Fox is willing to write a check for the equivalent of, say, 20 years' revenue, then Dominion might decide it's worthwhile to take the money. Note that the judge ordered the two sides to spend some time talking settlement, so the willingness of Dominion (or of Fox) to participate in this meaning might not tell us anything beyond that they don't want to anger the judge. (V)

Another Top Biden Pick May Bite the Dust

Joe Biden is having trouble getting nominees confirmed this year, even though Democrats have an absolute majority in the Senate. The problem is 2024. Some Democrats want to be able to campaign on having opposed him on important matters. His nominations of Gigi Sohn for a seat on the FCC and Phil Washington to lead the FAA didn't make it. Both withdrew when it was clear they wouldn't be confirmed. Sohn is a woman and Washington is Black.

Now Biden has nominated Julie Su to be secretary of labor, to succeed Marty Walsh, who resigned to be the executive director of the NHL players union. Su is a Chinese American. More trouble. There seems to be a pattern here. All 49 Republican senators are committed to voting no and Sen. Joe Manchin (D-WV) doesn't like her much either. All it will take is one more defection and she will have to withdraw or face a humiliating defeat.

All eyes are now on Sen. Kyrsten Sinema (I-AZ). If she is going to run for reelection as an independent, she can't be seen as a rubber stamp for Biden, so she has to start opposing him on high-profile votes—again. This would be a good place to start. Especially since the state is only 3.6% Asian, so she isn't going to run into identity politics issues here the way she would with, say, a Mexican-American nominee.

Biden knew that Manchin and Sinema would be problems, but he felt he had to add an Asian American to his cabinet. Again, that old identity politics thing. But in fairness, they might have opposed anyone he nominated, just to show the voters that they weren't his puppets. In that sense, Su, who is currently deputy secretary, was as safe a pick as anyone else. But she, too, may well bite the dust. (V)

It's Spring and Thus Lamb Time

Speaking of Kyrsten Sinema, her chances of being reelected are not great. Her only real chance is if the Republicans nominate a crazy person and non-crazy Republican voters en masse decide that she is a better bet. The Arizona GOP may well be cooperating. Pinal County Sheriff Mark Lamb just announced that he is running for the Republican nomination. Lamb is more of a lion than a lamb. He is an outspoken supporter of Donald Trump and claims that Trump won the 2020 election.

Lamb will try for the Trump lane, but he may have company. Pretend governor Kari Lake is also expected to jump in next to him. Blake Masters, who was crushed by Sen. Mark Kelly (D-AZ) last year, might join them as well. That would be the dream scenario for Sinema: three bats**t-crazy Republicans all trying to out-Trump each other. However, it would also be the dream scenario for Rep. Ruben Gallego (D-AZ), who is so far the only Democrat in the race. After all, if a complete loonie gets the Republican nomination, some Republicans may decide that Sinema isn't their cup of tea either and grudgingly vote for Gallego. Or they might vote strategically, deciding that they have to vote for Gallego to make sure the nutter Republican doesn't win. Arizona doesn't have runoffs, so if enough Republicans bolt, Gallego could end up with the most votes and thus win. On the other hand, Karrin Taylor Robson, who lost the Republican gubernatorial primary last year, might also decide to run and have the not-Trump lane all to herself.

Lamb's campaign video talks all about the border—gangs, sex trafficking, and fentanyl smuggling. If that's his thing, why doesn't he just move south a bit and run for sheriff of Pima County, which has a 125-mile-long border with Mexico? Then he could go catch the bad guys himself. (V)

Democrats Won Rich Districts, Republicans Won Poor Districts

A new analysis shows that nine of the wealthiest congressional districts in the country are now represented by Democrats while Republicans represent most of the poorer half of the country. FDR is probably rolling over in his grave, but here we are. Below is a scatterplot of median income and how the district voted in the 2022 midterms.

The way to read the scatterplot is as follows. To the right of thick vertical line, at Margin of victory = 0, are the districts Democrats won. More than half are above the $71K household income horizontal line. To the left of the Margin of victory = 0 line are the districts Republicans won. A clear majority are below the $71K line—that is, poor districts. So Democrats won rich districts and Republicans won poor districts. Republicans used to be the party of the country clubbers. That's really not true any more. The parties have swapped (many) voters.

But keep in mind that correlation is not causation. It may well be that Republicans' strength is in rural areas, and the people who live there are poorly educated and poor. So it may not be low income, per se, that drives people to vote Republican. It's probably other factors, like a lack of education, that are primary, but which correlate well with low income. Nevertheless, it is increasingly clear from many studies like this one that social class is a big determinant of how a district votes. Districts with many college-educated voters who are professionals have higher incomes than the average district and tend to be Democratic, with the reverse also true. (V)

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