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Biden Calls for Supreme Court Reform

Two insiders told Politico that this week (likely today), Joe Biden will unveil a proposal to reform the Supreme Court. We wrote that up. When we checked The Washington Post this morning, what did we find? An op-ed from Joe Biden calling for Supreme Court reform. Time for a quick update here. This is a shift for him, since he has opposed Court reform up until now.

Biden's proposal has three parts.

The proposals aren't worked out in detail. That would be up to Congress. The first one and second one definitely require one or more constitutional amendments. The third could be done by passing a federal law.

What if it proves impossible to get an amendment through Congress? After all, it requires a two-thirds majority of each chamber, so eliminating the filibuster wouldn't be enough. Could anything be done then? Maybe this. As to the first part, Congress could pass a law limiting the presidential immunity to only those presidential powers specifically named in the Constitution. So soliciting and accepting bribes for pardons would be legal, but many other "official acts" not named in the Constitution would not be. This law would be challenged, but the Court might be cowed by public reaction to the immunity decision and back down the second time, especially if the president were a Democrat who threatened to use his immunity in ways the conservative justices did not like at all ("I believe that in the name of national security I have the authority to order the CIA to assassinate Supreme Court justices who violate the Constitution and I certainly have the power to pardon the actual gunman or gunwoman."). Franklin D. Roosevelt didn't pack the Court, but the threat of his doing so scared the justices into refraining from killing the New Deal.

As to the second part, Congress could pass a law stating that after 18 years on the Supreme Court, a justice would be rotated off it and would serve for life in the appellate court of his or her choice. Or maybe a position of "senior justice" could be created, analogous to the senior judges on the appellate courts. The Constitution says that justices serve for life in good behavior, but it doesn't actually say they can serve on the Supreme Court for life. One interpretation of that clause is that they continue to draw their salary for life but that they can be put on senior status as required by (a new) law or put on a different court.

If a case about term limits came to the Supreme Court and Court voted "nope," we'd be in a pickle. But Congress could prevent that. Art III, Sec. 2, clause 3 of the Constitution reads:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. [Our emphasis]

To pull this off, Congress could first pass a law declaring the Supreme Court has no jurisdiction on cases relating to the composition of the Supreme Court itself or tenure of its justices, and Congress has the final word with no appeal possible. This follows the ancient principle of "No man shall be the judge in his own case." If the justices balked, the AG could indict them for violating a law duly passed by Congress.

Needless to say, none of this will even start unless the Democrats win the trifecta and do something about the filibuster. They need not abolish it. It would be sufficient to require filibustering senators to stand in the well of the Senate and talk until they drop, with no chairs, food, drink, or breaks for any reason. The technical term for this is "diaper time." If only two senators were present (the presiding officer and the senator speaking), the presiding officer could order the heating/air conditioning turned off to save the taxpayers money. That would discourage filibusters in the summer. And the winter.

Although nothing will happen on this front until a new president and new Congress are seated, the effect could be immediate. By the time you read this, we expect that Kamala Harris will have already said she is for it and Donald Trump will have said he is against it. This instantly makes Supreme Court reform a campaign issue. We think it will help the Democrats because the Supreme Court is very unpopular and even Republicans aren't comfortable with corrupt justices, even if they like how they vote. It was a smart move for Biden to inject this into the campaign. (V)

The Harris Candidacy Has Activated the Democratic Base

Passing the torch from Joe Biden to Kamala Harris has apparently changed everything for the Democrats. With Biden as their candidate, they were dejected, morose, despondent, and resigned to a slow path to ultimate defeat, sort of like a condemned criminal on death row who hears that the Supreme Court has turned down his final appeal. Within a few days of Biden's withdrawal, everything changed. Interest in Harris skyrocketed, which manifested itself in so many ways.

Her campaign raised a record $126 million from small donors within 48 hours. It raised a mind-boggling $200 million in the first week, and two-thirds of the donors were first-time donors. Last week, over 170,000 people volunteered to work on her campaign. When a group of Black women called "Win with Black Women" organized a Zoom call for her, 90,000 women joined it and they raised $1.5 million in 3 hours. A group called "Win with Black Men" had a call with 232,000 men and raised $1.3 million. A group called "White Women: Answer the Call" got 200,000 women on the call and raised $8.5 million. A handful of virtual rallies that raised over $10 million with a few calls was previously unheard of. Groups of South Asians, Latinos, Caribbean-Americans and other identity groups are springing into action and activating people and raising money for Harris. The various groups are starting to coordinate as well. None of this happened when Biden was the nominee.

A big difference with previous campaigns—and also different from the Trump campaign—is the use of digital technology. Groups of like-minded people, often separate from the campaign, like the above, are getting together in huge groups on Zoom. There were no virtual rallies for Hillary Clinton in 2016 and none for Donald Trump in any of his three runs. It's all about spontaneous grassroots support, aided by technology. And in most cases Harris isn't even involved and doesn't take part in the virtual call. It is hard to imagine a rally for Trump that raises $1 million with Trump not even showing up.

To some extent, these efforts feel like an evolution of Barack Obama's 2008 campaign, where grassroots organizers harnessed the power of the Internet to empower volunteers and raise money without the candidate even being involved. Only the scale is much greater now. Calls with >200,000 people were unheard of in the past and are the largest Zoom has ever handled. What is amazing is how fast these events have come together. The Harris campaign will probably be the shortest one in American history, but it got going faster than any other one as well.

One of Harris' greatest strengths is young voters. In a new poll Harris is leading among 18-34 year-old voters by 20 points, 60% to 40%. Young voters were a big problem for Biden, but it looks like Harris has solved it. Or, perhaps more accurately, it was solved without her even having to get involved. (V)

The Harris Conundrum

As we have mentioned multiple times, the "northern route" (Michigan, Wisconsin, and Pennsylvania) was easier for Joe Biden than the "southern route" (Arizona, Nevada, Georgia, and North Carolina) because the northern states are 80-90% white and mostly industrial with older, working-class voters—Biden's strength. The southern states are much more diverse and much less industrial. Swapping Biden for Harris changes things. Her strength is with young and minority voters, not older working-class white voters. Does she pick up more voters than she loses, and crucially, where? She is expected to run worse than Biden in the North and better than Biden in the South. Does that mean she swaps the northern states for the southern states?

Not so fast. Biden was very close in the northern states and in a deep hole in the southern states. Winning Georgia and North Carolina is a much tougher lift for any Democrat than winning Michigan and Wisconsin. Not impossible by any means, but more difficult.

Harris is no doubt polling like crazy and surely knows this. It can also have impact on her choice of veep. Picking Gov. Josh Shapiro (D-PA) could probably take Pennsylvania off the table and put it in her pocket. He would also help in Michigan and Wisconsin, since they are demographically similar to Pennsylvania. On the other hand, Sen. Mark Kelly (D-AZ) would virtually guarantee winning Arizona and probably neighboring Nevada. Also, having him on the ticket would almost certainly mean that Rep. Ruben Gallego (D-AZ) would crush Kari Lake for the open Senate seat. Pennsylvania has 19 electoral votes. Arizona plus Nevada have 17 EVs. In a close race, those two EVs could matter.

But there are intangible factors that Harris also has to consider when picking a running mate. Shapiro is an excellent speaker, but he has been a politician his whole life. Kelly was a brave Navy pilot and astronaut, but he is not a good speaker. Which is more important? Shapiro is also Jewish, which is guaranteed to put the Middle East front and center in the campaign and he is a strong backer of Israel, which will infuriate some lefties (who don't realize that Trump is infinitely more pro-Israel than Harris and that Young Jared wants to get rid of all the Gazans and then develop Gaza into Miami Beach, with expensive hotels and condos).

Harris may try to reassemble the Obama coalition, but the times are different. Here are the 2008 and 2012 electoral-college maps:

Electoral-college maps for 2008 and 2012; Obama won states like Ohio and Iowa that aren't winnables this time

In both races Obama won the three northern route states. In 2008, he also won Nevada, North Carolina, and Florida. In 2012, he won Florida, Ohio, and Iowa but not North Carolina. Winning Florida, Ohio, and Iowa is very unlikely for Harris, but if she can reconstruct enough of the Obama coalition to put together the 2012 map, she would win, despite the blue states having lost some electoral votes in the 2020 census. The 2012 map minus Florida, Ohio, and Iowa is now good for 277 EVs, which is enough. Also, in contrast to 2012, Arizona is very much in play this year and that could balance the loss of Wisconsin. (V)

Can Trump Bring the Left and Right Together?

Thomas Edsall has written an interesting column in which he suggests that with the selection of Sen. J.D. Vance (R-OH) as his running mate, Donald Trump is trying to bring the left and right together. Well, in a way. Specifically, he is trying to merge cultural conservatives, who care greatly about abortion and traditional sexual attitudes, with left-wing economic populism on matters like trade, jobs and being anti-big-business. This isn't the first time anyone has tried that. The actual name of the Nazi Party was Nationalsozialistische Deutsche Arbeiterpartei (National Socialist German Workers' Party). Did you see the "socialist" and "workers" in there?

With the addition of Vance to the ticket, Trump is focusing on people who are both culturally conservative and also financially squeezed. These people despise all the social changes that have happened in America in the past 60 years. They see Black Americans getting uppity, LGBTQ Americans flaunting their lifestyle in public, women obtaining positions of real power, and more. Many are also economically hard-pressed, in part due to manufacturing jobs being exported as a result of free trade and globalization, as well as unions becoming much weaker.

Trump can now emphasize the cultural stuff while Vance can talk about the economic issues. This is very different from what traditional conservatives like Ronald Reagan wanted. For them, the less government the better. Vance's pitch is to use the power of government to actively help the working class. Of course, as a wealthy venture capitalist, whether he means a word of what he is saying is a matter of some debate. The Nazis certainly didn't. But Vance talks about protecting ordinary workers against the greedy elites and supports traditional industries like coal, oil, and gas against the elites who want to replace them (and their workers) with solar panels and windmills.

Edsall argues that, despite how the Trump-Vance pitch is framed, in reality, the battle today is between different blocs within the elites. One bloc consists of billionaires and the CEOs of giant multinational corporations. They care about cutting the top marginal tax rate and reducing or eliminating all manner of regulations on what companies can do. The other bloc is intellectuals—academics, journalists, pundits, activists, etc.—who care about the position of various oppressed groups in society. They want affirmative action, D.E.I., and other things that give these groups a leg up. Neither of these groups is especially popular with working-class people, especially in rural areas. Now Vance can attack the greedy CEOs while Trump can attack the D.E.I. crowd. In partnership, they enrage the target audience even more. The two fit together well and also fit well with traditional authoritarian governments. Of course, both Trump and Vance are wealthy elites themselves, and don't give a rat's a** about actual workers. But they believe that together they can hoodwink the target voters.

How big is the combined group? One study suggests that it is about a quarter of the population. In Trump's view, this would form the core of the new Republican Party. Now add in people who are traditionally religious (but not really economically pressed) and people who are in poor economic straits but not especially bigoted, and maybe you can get to 50% +1. (V)

Poll: Harris' Net Favorability is Up 12 Points in a Week

A new ABC News/Ipsos shows that Kamala Harris' net favorability is up 12 points since Joe Biden dropped out. It is now 43% favorable vs. 42% unfavorable. A week ago it was 35% favorable vs. 46% unfavorable. What a difference a week makes. Here are the net favorability numbers for her, Donald Trump, Sen. J.D. Vance (R-OH), and Joe Biden:

Person Last Week This Week Net Change
Kamala Harris -11% +1% +12
Donald Trump -11% -16% -5
J.D. Vance -6% -15% -9
Joe Biden -23% -13% +10

As you can see, both Donald Trump and J.D. Vance, especially Vance, have lost considerable ground in the past week. Vance could end up being a drag on the ticket with "miserable childless cat ladies" and perhaps other demographics. In contrast, Joe Biden made big gains. No doubt he got some respect for putting the country before his personal ambition. (V)

Elon Musk Shares a Deepfake Video on eX-Twitter

The owner of eX-Twitter, Elon Musk is going all in for Donald Trump. He recently reposted an altered version of an ad made by the Kamala Harris campaign. The original ad talked about freedom. The deepfake version changed some of the video and used an AI-synthesized voiceover to have her say things like Joe Biden is senile and she doesn't know the first thing about running the country. Here are the original ad (on the left) and the deepfake (on the right):

     

What is noteworthy here is that the fake ad violates eX-Twitter's policy on synthetic media and misleading postings. However, that policy (apparently) does not apply to people who own the platform. If the deepfake ad is challenged in court, Musk will no doubt claim that it is a parody, which is protected by the First Amendment. There are surely going to be many more deepfakes in the next 3 months. Buyer beware. (V)

Trump Had a Busy Weekend

Because it's summer, it's primetime for the various conferences that political actors love to hold. And so, Donald Trump has a full schedule of conference appearances right now.

On Friday, he spoke to Turning Point Action, which held their conference in West Palm Beach, FL. And Trump's address had a couple of significant elements. Some media outlets focused on the fact that Trump said a bunch of nasty things about Kamala Harris. For example, the write-up from Politico had the headline "At South Florida rally, Trump cycles through new attacks on Harris" and the subhead "The former president is adapting to a campaign that's been overturned in the past week, and trying out several critiques against his new opponent."

We're not so sure that "Trump attacks Harris" is even news anymore, since that's what he does. And it's certainly a case of what journalists call "burying the lede" (and yes, that is the correct spelling). Because the other thing that Trump tossed off was this:

Christians, get out and vote, just this time. You won't have to do it anymore. Four more years, you know what, it will be fixed, it will be fine, you won't have to vote anymore, my beautiful Christians. I love you Christians. I'm a Christian. I love you, get out, you gotta get out and vote. In four years, you don't have to vote again, we'll have it fixed so good you're not going to have to vote.

Remarkably, the Politico piece doesn't mention that part until the very last paragraph, noting in passing: "Four years from now, he argued, the country will be 'fixed so good you're not going to have to vote.'" Other outlets similarly saw this as a secondary issue, behind the attacks on Harris.

We struggle to wrap our minds around that sort of news "judgment." It sure looks, to us, like a case of Trump saying the quiet part out loud, and conceding that if all goes according to plan, he does not want to hold elections beyond this one. It becomes even more damning when Trump spokesman Steven Cheung was asked about the remarks and refused to offer an alternate explanation of what the former president meant. Eventually, Trump decided it was "a joke." Seriously? That's the best you've got?

We just cannot help but notice that when Joe Biden garbled his words, it was time for seven different critical op-eds in The New York Times. But Trump implies he wants to bring an end to presidential elections, and many outlets decide it's barely worth a mention. And it's hardly the only way in which his campaign has been authoritarianism-adjacent. Project 2025. Threatening to use the U.S. Army to invade Mexico and round up undocumented immigrants. Threatening to summarily eject 10 million+ existing U.S. residents. Promising to reinstate the Muslim travel ban. Impeaching any and every Democrat whose name House Republicans can spell. We do not propose that Biden's missteps should not have been covered, but does giving three and four and five times the coverage to "Biden loses his train of thought" as compared to "Trump suggests that 2024 will be the last election" make any sense at all? Not to us.

Anyhow, moving on, as president, Donald Trump said that cryptocurrencies were highly volatile and based on thin air. On Saturday, he was in Nashville addressing the biggest cryptoconference and supporting cryptocurrencies. Not only that, but he allows campaign donations in bitcoin and has received $4 million worth so far. He even attacked the Biden administration's "war on crypto." However, Trump conveniently didn't mention any of the massive fraud schemes that have racked crypto in the past few years. For example he had nothing to say about Sam Bankman-Fried, who pulled off a multi-billion-dollar fraud scheme until he didn't and was convicted and sentenced to 25 years for it.

Trump said several things his audience of about 20,000 people wanted to hear. He wants to maintain a strategic reserve of bitcoins. He also said that he wants crypto mined, minted, and made in the USA.

Trump didn't say what caused his 180-degree turn. Maybe he thinks there are enough crypto investors that it is an important enough bloc to pander to. Maybe running mate J.D. Vance, who has a background in Silicon Valley, talked him into it.

But there are more folks out there that have no faith in it. Three-quarters of people who have heard about crypto think it is unsafe and unreliable. Like the Dutch tulipmania of the 17th century, crypto will probably be a good investment until it suddenly isn't. And they don't ring a bell when the market is at the top. (V & Z)

Republicans Are Already Working on Excuses for a Trump Loss in November

In 2020, in a number of states, Donald Trump took the lead on Election Day but, as absentee ballots returned on or before Election Day were counted, his lead dwindled until it was gone and Biden was ahead. Donald Trump bellowed many times that the counting should stop at midnight on Election Day, even if state law required ballots received on time to be counted.

We are likely to have a rerun of that again this year in seven states, most notably Pennsylvania, the largest swing state. This delayed count could give Trump ammo to claim that Democrats were stuffing the ballot box after the election and rile his supporters up, possibly for another attack on the Capitol, on Jan. 6, 2025.

In 43 states, this "red mirage" won't happen. In those states, election officials are permitted (or required) to: (1) check the signatures on the absentee-ballot envelopes well before Election Day, (2) open the envelopes and (3) place the unfolded ballots in neat piles, ready to be put into the hopper of the ballot-counting machine at 7 a.m. (or earlier) on Election Day. Then the absentee totals can be announced as soon as the polls close. This might possibly create a "blue mirage," but it wouldn't be grist for Trump's mill if at 8:01 p.m. on Election Day it was announced that he was starting way behind due to the absentee ballots.

So why don't Pennsylvania and the six other states allow what is called pre-canvassing? Because Republicans don't want it and they have the power to block legislation enabling it, as the Republican-controlled Pennsylvania state Senate recently did. They want Donald Trump to have some excuse for claiming the election was rigged in the event that he loses. Kathy Boockvar, who was Pennsylvania's secretary of state in 2020, said: "It's reprehensible that they didn't get it done. This is not rocket science. The reality is that not passing this bill will mean that ballots will take longer to count, which means it will be longer until we have the results of the election." Pennsylvania state Rep. Scott Conklin (D) said: "This is a perfect case of where the elected officials are purposely causing a delay, causing an atmosphere of conspiracy and doing it on the backs of good citizens who trust them."

But it gets worse. In 2020, in the interval between Election Day and the final result, police arrested two armed men who drove up from Virginia in search of fake ballots. The longer the window between Election Day and the final results, the more danger there is of vigilantes trying to stop the count. It would obviously be better for the seven holdouts to allow precanvassing, but the Republicans don't want it in either Pennsylvania or Wisconsin, so there could be conspiracy theories this year if those states are close. (V)

Democratic House Candidates Are Raking It In

In a majority of competitive House districts, Democratic challengers have raised more money than Republican incumbents. In some districts, a lot more. In 17 of the 29 Republican-held House districts that at least one of the parties sees as a battleground, the Democrat is doing better at fundraising. On the average, the Democratic challengers have raised $1.2 million to the Republican incumbents' $965,000. Money isn't everything, but it is unusual for people with the advantage of incumbency to do worse than challengers.

Up until the moment the top of the ticket switched, Democrats were despondent about winning the House and Senate. They were afraid that House and Senate candidates grabbing onto Joe Biden's coattails would be dragged down with him. Now with a new candidate on top and more money than the incumbents, it will be possible for challengers to flip a number of red seats to blue, especially in New York and California. Harris could note this and decide that campaigning in New York and California—in carefully selected House districts—was worth it this time. She could also combine trips to those states to campaign in House races with fundraising there.

There are 17 districts that Joe Biden won in 2020 that are represented by Republicans. These are among the top Democratic targets. In three of these, the Democrat raised twice as much as the Republican. These are as follows:

District Incumbent Challenger 2020 Result PVI
CA-13 John Duarte (R) Adam Gray (D) Biden+11 D+4
CA-22 David Valadao (R) Rudy Salas (D) Biden+13 D+5
NY-19 Marc Molinaro (R) Josh Riley (D) Biden+4 EVEN

On paper, the Democrats are in a very strong position to flip all three of them, given the PVI, 2020 results, and the money.

In the reverse situation—Republicans challenging incumbent Democrats—the challengers are not outraising the incumbents. In 34 swing districts, only one incumbent, Vicente Gonzalez (D-TX), was outraised by the challenger. In races where the candidates are already known, the average incumbent Democrat had $2.5 million on June 30, compared to the average challenger's $500,000. Nationwide, however, the average Republican incumbent has more than the challenger. (V)


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