Senate page     Feb. 15

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New polls:  
Dem pickups: PA
GOP pickups: (None)

DiFi Says "Bye-Bye"

All good things must come to an end. Sen. Dianne Feinstein (D-CA) is pushing 90, just lost her husband, is suffering from memory problems, has not been raising money for her next campaign, and already has multiple upwardly mobile members of the House openly running for her seat. Everyone could see where this was headed, and yesterday the Senator finally acknowledged it, announcing that she will not stand for reelection in 2024.

Feinstein has had a brilliant career, by any measure. Her first successful campaign was for the San Francisco Board of Supervisors back in 1969, when women in political office were still something of a rarity. She served there for 8 years before being elevated to the mayoralty. Not too many folks know this, but she first became mayor thanks to the assassinations of fellow supervisor Harvey Milk and Mayor George Moscone. That left Feinstein next in line; she was interim mayor for a few days and then was given the permanent job, which she held for nearly a decade.

In 1990, finding she was out of step with increasingly liberal San Francisco, Feinstein took a shot at the California governor's mansion, but lost to Republican Pete Wilson. She then won the special election to fill the U.S. Senate seat that had been vacated by... Pete Wilson. She has been in the Senate ever since, winning five terms of her own. Thanks to her long career representing a very large and very blue state, she's received more votes for U.S. Senator than anyone else in American history, and it's not especially close. Her tally is 34.7 million votes, which puts her well ahead of the #2 person on the list, longtime Feinstein ally Barbara Boxer (D-CA; 21.8 million). If you'd care to guess the next 10, we'll put them at the bottom of the page. Here's a hint: Only three of the next 10 are still serving in the Senate.

Feinstein says she will finish out her term, and will not resign. Her commitment is admirable; we shall see in the next year-plus how practical it is. Yesterday, a reporter asked about her pending retirement, and Feinstein said she hasn't made an announcement about retiring. A staffer had to gently remind the Senator that, in fact, her office had issued a press release a few hours earlier.

Now that Feinstein has made it official, the delicate "let's be polite to a senior member of the Party" dance can stop, and the 2024 campaign can commence in earnest. The almost-certain frontrunner to replace Feinstein will be Rep. Adam Schiff (D). He's already got the endorsement of Speaker Nancy Pelosi (D-CA), and is expected to get Feinstein's backing as well. In other words, the establishment is lining up behind him. Further, California is a state where Donald Trump is rather unpopular (34% of the vote in 2022). Schiff prosecuted one of the two impeachments and was a leading member of the 1/6 Committee. He is about as close as it gets to being a Trump slayer. That will get him a lot of votes.

Next in line, at least for now, is Rep. Katie Porter (D). She's charismatic and has a loyal fanbase. She's also an excellent fundraiser, although she largely emptied her war chest in order to hold on to her seat in the House (Schiff, by contrast, has nearly $10 million in the bank). And, as a general rule, in statewide elections, Californians tend to favor more moderate Democrats over more progressive Democrats. If so, well, Porter is more lefty than Schiff is. That said, because of California's jungle-style primary, it's entirely possible that both of them will advance to the general.

The other Democratic candidate, at least so far, is Rep. Barbara Lee. She hasn't formally declared, but says an announcement is coming. The problem here is that, if she wins, she'd be 77 by the time she was sworn in. The second problem here is that she is nowhere near as well known as Schiff or Porter. Lee's best hope was (and is) for Feinstein to resign, for Gov. Gavin Newsom (D-CA) to abide by his pledge to pick a Black woman for the seat, and for that Black woman to be Lee. She might just have a chance, as an incumbent. But, failing that, she might decide not to run after all.

Rep. Ro Khanna (D) has also expressed interest, though it's not entirely clear to us what his lane would be. He and Porter would probably split the lefty vote, which might actually produce a semi-rarity for California: A U.S. Senate race with a Democrat and a Republican in the general election (only two of the last five have had that).

The two candidates who might really shake up the race, if they were to enter, are Newsom and HHS Secretary Xavier Becerra. Newsom appears to have his eye on bigger targets, though he said he won't challenge Joe Biden in 2024 if Biden runs for reelection. Since it looks like that is going to happen, Newsom could decide that a Senate seat is a nice platform from which to launch a 2028 campaign. As to Becerra, California has a lot of Latinos. And, unlike any of the declared or semi-declared candidates, he's actually won statewide (he was AG of California, not unlike former California senator Kamala Harris).

As to the Republican side of the contest, it's an absolute wasteland. The GOP bench in California is thinner than the résumé of "George Santos." Yes, there are some prominent Republicans serving in the state's U.S. House delegation, starting with Speaker Kevin McCarthy, but those folks tend to prefer their safe House seats as opposed to tilting at senatorial windmills where they might not even make it out of the primary. There are no Republican officeholders statewide, and none of the Republicans who ran for statewide office in the last few cycles came close to actually winning. Last year, Lanhee Chen supposedly had a chance to become the first statewide Republican officeholder in a decade, and he got crushed by nearly 11 points.

Maybe Chen will be back for another shot, or maybe one of the GOP party leaders in the state legislature will give it a go. But California is a very expensive state to campaign in, and the national party does not want to waste money on a lost cause. So, it's likely the Republicans will end up with the same kind of Senate candidate they usually do these days: a fat cat who can self-fund. (Z)

A "C" for Biden

Joe Biden was, reportedly, a lackadaisical student who pulled mostly "gentleman's Cs" in college. That's also true of the guy before Biden, and the guy two before that. Apparently, grades aren't everything.

In this case, however, the C is not a grade, and is in fact a good thing for the President. C is also the Roman numeral for 100 and, as of yesterday, that is how many of his judges have been confirmed by the Senate. Lucky number C was Gina Méndez-Miró, who will be a U.S. district court judge for Puerto Rico. Biden's pace puts him ahead of Donald Trump (85 judges) and Barack Obama (67) at this point in their tenures. The President has also made a point of emphasizing diversity; 76 of his confirmed picks are women and 68 are people of color.

Biden still has some low-hanging fruit to pluck on this front. There are ten open seats on the appellate courts, for which Biden has already put forward seven nominees. Since appeals judges cannot be blue-slipped, the seven will surely be confirmed in short order (or, failing that, replacement nominees will be confirmed). And three more will soon follow. There are also 57 open district-court seats (of which 37 have nominees already) from states with two Democratic senators. No blue-slip problem with those, either. All of this means that Biden can run his judge total to 167 without much difficulty. That will put him in spitting distance of Trump's 4-year total (234).

Then there are the 27 open district-court seats from states with at least one Republican senator. Biden might be able to wangle a few of those, but probably not too many. So, sometime relatively soon, Senate Judiciary Committee Chair Dick Durbin (D-IL) is going to have to decide exactly how much value the blue-slip tradition still has. Odds are, it will join the dodo, the Ford Edsel and the McDLT on the scrap heap of history. (Z)

Haley Will Take on Trump

Because former South Carolina governor and U.N. Ambassador Nikki Haley already leaked it 2 weeks ago, this isn't exactly news. Nonetheless, today she will make it official, and declare her 2024 candidacy for president.

Here is Haley's announcement video:



It's 3 minutes of red meat for the base—you know, socialism bad, China bad, Iran bad, Alexandria Ocasio-Cortez bad, Joe Biden bad, Jesus good, 'murica good, etc. It also frames racism in exactly the way that Republican voters tend to like, as something that "was" a problem for Haley, but that melted away thanks to her commitment to American values.

The very last lines of the video are somewhat interesting. Haley says:

It's time for a new generation of leadership, to rediscovery fiscal responsibility, secure our border, and strengthen our country, our pride, and our purpose... You should know this about me, I don't put up with bullies. And when you kick back, it hurts them more if you're wearing heels. I'm Nikki Haley, and I'm running for president.

Donald Trump, you might recall, is not a "new generation" of anything, and is known for bullying opponents, particularly women. So, it's not too hard to see that last bit as a shot across the bow of the S.S. Donald.

CNN did an interview with Rep. Nancy Mace (R-SC) that, perhaps better than anything, illustrates the problem with Haley's candidacy. You can watch the video here, if you wish, but what Mace says is:

And despite all of these things, Mace still refused to answer a question about whether or not she would endorse Haley's presidential bid. If Donald Trump's power is so strong and/or if your odds are so poor, that a person who is a close friend and ally is reluctant to support you, then who will support you?

That said, we don't really think Haley is running for president. Much more plausible for her is the VP slot. Donald Trump isn't going to pick an apostate to run beside him, but Gov. Ron DeSantis (R-FL) might like to have Haley on his ticket. That said, she's gotta show she can move at least some voters, which means her polling needs to climb above the 1-2% where it currently sits most of the time. (Z)

Trump Is Desperate for Ideas

Although Donald Trump is known as a businessman and a politician, the true core of his identity might well be "reality TV star." After all, in each of his various careers he's been a showman along the lines of P.T. Barnum. Further, on The Apprentice, he got to play the role of a successful businessman. That is not necessarily a role he played all that often in real life.

When Trump was on that show, he and the producers constantly searched for new gimmicks in order to keep things "fresh." The show started with teams organized by gender, but in season three switched to "college degrees vs. no college degrees." When New York grew stale, the show shifted to Los Angeles. When regular folks got boring, they started using C-list celebrities. And so forth.

As he runs for reelection, Trump is naturally going to adopt the same approach. "Build the Wall!" and "Lock her up!" aren't going to get it done anymore; not only are they now 8 years old, but they are rather clear reminders that Trump did not, in fact, build the wall or lock her up. He's gotta come up with something new, and right now he's testing out ideas for what that something new might be.

That brings us to new reporting from Rolling Stone that the magazine published yesterday. It would seem that Trump has observed, quite correctly, that many Republican voters are strongly "law and order" and are supporters of the death penalty. So, he is toying with a dramatic expansion in federal executions as a major campaign theme for 2024. And that doesn't just mean more executions. Trump is thinking that the executions should be more violent—firing squads, perhaps, or hanging. He has even asked associates how hard it would be to bring back the guillotine. And it doesn't stop there, either. Reality TV star that he is, he thinks it might be a good idea to put these violent executions on television, for viewers to follow along.

This is, of course, a vile line of thinking. Regardless of your views on capital punishment, there are reasons that U.S. courts have forbidden some of these brutal forms of execution (think "cruel and unusual punishment"). Further, to turn the death of someone—even a convicted, violent felon—into a spectacle is absolutely reprehensible.

Our guess is that someone will persuade Trump this isn't a winner, and that his thoughts will go elsewhere. But make no mistake, he is going to come up with something that connects with the base and that can be used to drive his supporters into a frenzy at rallies. The only question is how crazy that something is. (Z)

Oh, And Just One More Thing...

Most readers will be familiar with the TV show Columbo. While American TV is full of police procedurals, that particular program flipped the usual script by showing you the crime and the criminal at the very beginning. The drama was in watching the titular detective, played masterfully by Peter Falk, figure out what the audience already knew, and to eventually nab the evil-doer.

We mention this because Donald Trump's involvement in the events of 1/6 kinda feels like an episode of Columbo. We all know what happened, we all know who did it, and now we all get to watch while the G-men chip away at the case, just like the police lieutenant. Yesterday came another small step toward the moment when the perp is outmanned, outgunned, and out of luck.

Specifically, Special Counsel Jack Smith is currently in pursuit of Trump attorney Evan Corcoran. Smith and his team believe that Corcoran is in possession of information that the feds need, and that has been withheld under the umbrella of attorney-client privilege. Team G-men needs to overcome those claims of privilege, and one circumstances in which privilege does not apply is if the attorney participated in furtherance of a crime. So, that is precisely what Smith argued in a court filing yesterday, that Corcoran is helping Trump to commit a crime.

That is worth repeating: We now have a formal court filing from the Special Counsel that asserts that Trump committed a crime of some sort. An accusation is not proof, or a conviction, but it's one big step along that road. And when prosecutors like Smith are convinced that someone has committed a crime, well, we all know what they tend to do with that. (Z)

Pence Is Desperate for an Excuse

Jack Smith has his sights set on Evan Corcoran (see above). But that is hardly the only fish that the Special Counsel is trying to hook. No, he wants to have a nice, long chat with former VP Mike Pence as well. In fact, Pence has already gotten a personalized invitation to a tête-à-tête with the grand jury that Smith has empaneled.

Pence got some amount of praise for doing the right thing on 1/6, and refusing to try and overthrow the presidential election result. And maybe there really was some civic spirit in their somewhere. But, more and more, it's looking like Pence's concern on 1/6 was... Mike Pence. After all, his neck was on the line, and if there had been arrests for obstruction or some other serious crime, the VP would have been first to end up in handcuffs.

Consistent with Pence's overwhelming concern with his own self-interest, he is working to resist Smith's subpoena with all his power. The former VP surely has some valuable information, and might even play a role in making sure that there's never another coup attempt. But talking to the grand jury would alienate the MAGA voters. And Pence still thinks those voters might be persuaded to support his presidential bid. So, alienating them is a big problem, as far as he is concerned.

As he fights the subpoena, Pence's argument is going to be that the "speech or debate" clause of the Constitution protects him from having to testify. Here is that portion of the document, as a reminder:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

In other words, members of Congress can't be prosecuted for what they say in the course of discussing legislation, nor can they compelled to testify about same.

There are some rather sizable problems when it comes to Pence invoking this clause in order to evade a subpoena, however. First, affirming the presidential result is not "legislating." Second, as you can see in the excerpt above, the speech and debate clause applies to "Senators and Representatives." The vice president might be President of the Senate, but he or she is not a senator (or a representative). Oh, and the Supreme Court has already made clear across several decisions that the protections of the speech and debate clause come with clear restrictions.

Pence himself, incidentally, has also gutted this argument with his past statements and legal filings. When it suited his needs, he insisted that his role in affirming the presidential result was "purely ministerial," and that he did not have any of the powers of a legislator. Later, when it suited his needs, Pence claimed that his activities that day, and any information he had about them, were covered by executive privilege. In other words, at various times, he has decreed that he was acting as a legislator, as a member of the executive branch, and as none of the above. You need a scorecard to keep track of what today's argument is.

The bottom line is that Pence is going to lose here, since he's got zero legal leg to stand on. The only question is how quickly a federal judge will tell him to take his speech and debate clause argument and shove it. Maybe the VP is just trying to buy as much time as is possible, the way that his former boss likes to do. Or maybe he just wants the MAGA crowd to see him fighting, so he can say, "I didn't want to testify, but they left me with no choice." Whatever his thinking is, his chances of becoming president are still not much better than ours are. (Z)

Adam Frisch Will Square Off Against Boebert Again

Last November, Democrat Adam Frisch came within 565 votes of unseating Rep. Lauren Boebert (R-CO). In fact, it was the last of the 435 House races to be officially called. Yesterday, Frisch announced that he's going to be back for another go at it in 2024.

This news was very, very predictable. Not only do people who lose by a fraction of a percent tend to want to take another bite at the apple, but Frisch also conceded defeat very quickly, long before the race was officially called. The obvious reason to do this was to communicate that he's a good guy and not a sore loser, in anticipation of future political campaigns. It was actually a very shrewd move, since concessions have no legal significance. So, if he had somehow come out on top after a recount, he still would have been sent to Washington.

Boebert should be very nervous, for several reasons:

Of course, Boebert knows what's coming this time, and can prepare. But what does that really mean for her? She's got her "look at me!" approach, and the dial is already turned up to 10. What trick, tool, or gear is available to her that she's not already using? Further, as she tries to match the mountains of money that Frisch will raise, Boebert could really use some help from the NRCC. Inasmuch as the NRCC is controlled by Kevin McCarthy, that help might not be forthcoming.

In any case, this is now the most interesting 2024 House race in the country. The only way we can see it losing that distinction is if "George Santos" actually tries to run for reelection. (Z)

Here are vote-gettingest senators #3 through #12:

  1. Chuck Schumer (D-NY; 18.8 million votes)
  2. Alan Cranston (D-CA; 15.7 million)
  3. Ted Kennedy (D-MA; 13.4 million)
  4. Daniel Patrick Moynihan (D-NY; 13.3 million)
  5. Dick Durbin (13.2 million)
  6. Jacob Javits (R-NY; 12.6 million)
  7. Carl Levin (D-MI; 12.0 million)
  8. John Cornyn (R-TX; 11.3 million)
  9. Arlen Specter (D/R/D-PA; 11.2 million)
  10. Kay Bailey Hutchison (R-TX; 10.5 million)

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