• COVID Complicates Committee Conclave
• Saturday Q&A
• Today's Presidential Polls
• Today's Senate Polls
There were many developments on Friday in response to Donald Trump's COVID-19 diagnosis. We know he has received both Remdesivir (a standard anti-viral) as well as an experimental treatment called Regeneron's polyclonal antibody cocktail. And, after the latter treatment, he decamped from the White House to Walter Reed National Military Medical Center.
The White House has a fairly extensive medical treatment facility of its own, of course. So what does Walter Reed offer that the Executive Mansion does not? Well, surgical facilities and labs, for starters. And then, on top of that, a much larger staff, including more rapid access to various sorts of specialists. The hospital will also have more equipment than the White House does, undoubtedly including a much larger variety of ventilators, if needed.
Since the White House cannot be trusted to tell the truth about the President's health, we're left to guess what this all means. It's certainly possible he's very, very ill, though we are inclined to doubt that, at least at the moment. He only began to manifest symptoms on Thursday night, and he was able to walk to Marine One for the trip to Walter Reed under his own power. The best explanation, we think, is that he is scared witless, and he is being extra cautious/proactive. That said, it's also probable that the administration's claims of "only mild symptoms" are underselling things.
We also strongly doubt, at this point, that the whole thing is a scam. Yesterday, we wrote that it would be an enormous risk, politically, to admit to having the disease. Today, we think there's just too much corroborating evidence for it to be a conspiracy. To start, and as we hypothesized yesterday, the White House did not want the news to go public. The media pieced it together based on Hope Hicks' diagnosis, and then the President's movements, behaviors, and unexpected schedule changes.
In addition, there are too many improbabilities at this point for this all to be a giant kabuki theater performance. It's improbable that Trump would go to Walter Reed for a few days just for show. It's improbable that the military would scramble multiple E-6B Mercury planes just for show. The E-6Bs are used to manage nuclear strikes and are commonly scrambled in situations like this to send a message to unfriendlies: "Don't even think about it." It's improbable that so many people around the President would contract the disease at the same time, or would agree to participate in faking it.
And speaking of the folks around him who have it, the list now includes—in addition to the President, the First Lady, and Hope Hicks—Trump campaign manager Bill Stepien, RNC Chair Ronna Romney McDaniel, Sens. Mike Lee (R-UT) and Thom Tillis (R-NC), former presidential aide Kellyanne Conway, and University of Notre Dame president Rev. John Jenkins (who participated in various events involving Supreme Court nominee and Notre Dame alumna Amy Coney Barrett). Speaking of Barrett, she already had the disease, making her less likely to contract it now. However, the exact starting point for the current Trumpian outbreak remains unknown, and there will undoubtedly be many, many more cases in his orbit in the next few days, as the virus has time to incubate, and as those who may have been afflicted are tested.
One person who has already been tested, as of Saturday morning, is Joe Biden. The Democratic nominee announced that both he and his wife have tested negative. He also said the Biden campaign would continue, but that any negative ads about the President would be suspended for the duration of his convalescence. The Trump campaign will not return the favor; Trump 2020 spokesman Tim Murtaugh declared that Biden speeches where he compares himself with the President constitute "attacks" and thus make the former VP's "no negative ads" promise meaningless.
But even if Trump 2020 knows they will stick with the negative ads (which are the bulk of their catalog), they are nonetheless reeling now that their candidate and their head strategist (Stepien) are sidelined for an indeterminate amount of time. All in-person events have been canceled, of course. The campaign would love to replace some of those with virtual events, but Trump hates virtual campaigning, and may not be well enough, anyhow. Trump 2020 can't figure out what they might do, under these circumstances, to move the needle in a campaign where their candidate clearly lags in polls. And they really can't figure out how to keep the focus off COVID-19 while the President himself is suffering from COVID-19 (pro tip: not possible).
That's the latest news as of Friday night. Undoubtedly, Saturday will be another day full of new developments. (Z)
Senate Judiciary Committee Chairman Lindsey Graham (R-SC) is planning to hold confirmation hearings for Judge Amy Coney Barrett on Oct. 12. The situation is now complicated by the fact that two of the members of the committee, Mike Lee and Thom Tillis, have tested positive for COVID-19. There are 12 Republicans and 10 Democrats on the committee, so if Lee and Tillis are in quarantine and don't show up, the final vote will be 10-10. This will not stop Majority Leader Mitch McConnell (R-KY) from calling a floor vote, though. During the floor vote, the two sick senators could zip into the chamber for 10 seconds, vote, and then scurry out again. Technically, that would not be needed though. If Sens. Lisa Murkowski (R-AK) and Susan Collins (R-ME) voted no and Lee and Tillis didn't show up, the vote would be 49-49. Then Mike Pence could do something he could brag about for the rest of his life: His vote put Barrett on the Supreme Court.
A virtual hearing is theoretically possible, but the Democrats have already ruled that out for such an important event.
The real complication is different. Sen. Kamala Harris (D-CA) is also a member of the committee. She was no doubt planning to rake Barrett over the coals on some of her past statements. It is also possible the other Democrats on the committee will cede their questioning time to her to let her really grill Barrett thoroughly. This will have no effect on the final vote, which will be strictly along party lines, but will give her national exposure. Seeing Harris really light into Barrett may help the Biden/Harris ticket with younger voters who haven't warmed to Harris.
But what will Harris do if Lee and Tillis show up? What will she do if other members of the committee have tested positive by Oct. 12 (or even if they haven't, but have talked to Lee or Tillis or Trump recently)? Will she risk even showing up herself and talking for 5 minutes or 45 minutes or however much time she gets? Having the Democratic ticket consist of a 77-year-old and a 55-year-old in the hospital with COVID-19 would not be a great show of strength. Consequently, Harris has to avoid COVID-19 like the plague it is. We'll see how this develops, but it won't be an easy call for her. (V)
Lots and lots of questions stemming from Donald Trump's COVID-19 diagnosis, as you might guess. We'll start with three that we got from many different readers.
Q: If Donald Trump dies of COVID-19 and Mike Pence is made president, then who breaks ties in the Senate? B.S., Chelsea, MI
A: Nobody. If a measure does not get a majority, it fails, whether a VP is available to break ties or not. In other words, when the vice presidency is vacant, there is no tiebreaking vote.
Q: In the event that Donald Trump dies before the election and the Republican Party elevates Mike Pence to be its candidate, is there any polling data to suggest how much support Pence would receive? M.H., Salt Lake City, UT
Q: Might Mike Pence, if he becomes the de facto candidate, sway some voters who are now for Joe Biden to go back to the GOP? Unexciting and a traditional Republican, he might appeal to voters who finally have had enough of Trump's style, but still don't mind the policies. Do you think, especially in the swing states, a theoretical Pence "nomination" might matter? E.V., Derry, NH
A: The situation E.V. (great initials!) proposes certainly could come to pass. However, we would guess that any gain among skittish independents and Never Trump Republicans would be more than offset by white noncollege men who love The Donald and not the Party and who would sit this one out if their champion is out of the race.
The available data support our supposition that Pence would be a weak candidate. His approval/disapproval numbers are nearly identical to the President's (roughly 42% approve/50% disapprove). Further, last year when there was some thinking that Trump wouldn't run for reelection, there was some hypothetical Pence vs. Biden/Sanders/Warren polling. He tended to lose to all three, even in purple states. For example, here is a story about how Pence would lose Ohio to any of the three leading Democrats (54% to 46% if Biden is his opponent). Recall also that the VP had become unpopular in his home state, and accepted the #2 slot in part because he knew he was likely to lose his gubernatorial reelection bid. And that's in red, red Indiana.
Q: If Donald Trump was to pass away, what happens to his nominations? (One in particular is on my mind.) He'll no longer be President. Shouldn't his nominations be automatically voided to allow President Pence to nominate whomever he wants? S.S., West Hollywood, CA
A: It is not entirely clear if a president's nominations, once made, survive him should he pass away. There's never been much need to put it to the test because the eight men who succeeded deceased presidents were all of the same party (at least nominally) and were not interested in appearing to disrespect the recently deceased. So, they generally "renewed" any pending nominations, just to be sure. Undoubtedly, Pence would do the same thing, since Amy Coney Barrett is surely sufficiently evangelical for his tastes.
Of course, a president is free to withdraw any pending nominations they see fit, including those of their predecessors. Which means Speaker Nancy Pelosi (D-CA), should the presidency devolve upon her, would certainly be able to kill the nomination of Amy Coney Barrett.
Q: If Donald Trump does have COVID-19, can you guys please game out how—not if—Trump will try to delay the election? S.B., Los Angeles, CA
A: He can't and he won't. He has no role to play in the administration of the election, and no "right" to X amount of "healthy" campaigning time. This being the case, he has no argument for a delay. Changing the date would require an act of Congress, and House Democrats would never agree.
Q: What are your thoughts on the possibility that Donald Trump will use his diagnosis as an excuse to save face by dropping out? S.W., Marion, IA
A: This is more plausible than the previous scenario. If he decides he's sick of the whole thing (no pun intended), and that he's feeling old and tired, and he doesn't want to be on the wrong side of a potential landslide, he certainly could use this as an opportunity to bow out with "honor." Not likely, but not impossible. However, all the ballots have already been printed and his name is on them. If in 2 weeks he were to announce "I'm firing myself" (possibly just after pardoning himself and his whole cabinet), history would not record this as a simple Pence-Biden election. Trump would still go down as a loser.
Q: Carole Cadwalladr, a writer for The Guardian, noted that the net effect of UK PM Boris Johnson getting COVID-19 was a surge in patriotic support in Great Britain and a resurgence of his popularity. How likely is Trump's diagnosis to do the same here? A.S., Brewster, MA
A: Let us point out three major differences between the two situations:
- Johnson did not aggressively downplay/deny the existence of the disease; Trump did
- There appear to be Brits who like Johnson personally even if they dislike his policies; not so for Trump
- On the day Johnson was diagnosed, the U.K. had less than 1,200 COVID deaths; on the day Trump was diagnosed the U.S. had more than 210,000
In any event, while Johnson's personal approval rating went up about 6 points (from 60% to 66%, albeit temporarily), support for his political party remained steady (about 50%). Given the way the British system works, this is sort of the equivalent of many voters saying "We feel bad for you that you're so sick, although that doesn't mean we're switching our votes to you." In the U.S., then, it's plausible that Trump's personal numbers could improve while his projected vote totals don't change.
Q: In post-World War II history, have any candidates for office in the United States been hospitalized or physically incapacitated during a significant part of the final month of their electoral campaigns? If so, what was the outcome of those elections? G.B., Manchester, UK
A: There is no parallel to the current situation. The closest we've got: (1) in July 1960, Richard Nixon was hospitalized for 12 days with a knee infection (footage of him in his hospital bed here); and (2) during the 1956 campaign, Dwight D. Eisenhower had to take it pretty easy overall due to his ongoing and serious heart issues (though he wasn't hospitalized). Again, neither of these really match what could happen with Trump in the next month. For what it's worth, though, Nixon lost a close one and Ike won in a landslide.
Q: It has been reported by The New York Times that Donald Trump is receiving a "promising experimental treatment" for COVID-19. Should a sitting president receive experimental, rather than standard, treatments? This is for both medical and social reasons, since he might have access to treatments not available to ordinary people. Does this imply that Trump is sicker than the press releases imply, or is he simply willing to take any chance for the best possible outcome? L.R.H., Oakland, CA
A: The experimental treatment Trump got (Regeneron's polyclonal antibody cocktail, as we note above), is being tested right now in a 275-person clinical trial. The President would not have qualified for the trial, as he has complicating factors (age, obesity) that would have caused him to fail the screening. And he would likely not have been able to get the drug on a "compassionate" basis because, unless we miss our guess above, he's not sick enough (you have to be on death's door, or very close to it). So, he almost certainly did get it because he's (possibly) rich and powerful and can pull strings. Seems icky to us, but readers' mileage may vary.
Undoubtedly Trump pursued this option because: (1) he's prone to magical thinking when it comes to medicine and physiology (remember his stance that exercise doesn't help you, it just drains your "lifetime" battery), and (2) he feels he's entitled to special opportunities not available to the great unwashed.
And finally, we will note that just about everything a president does is governed by an overabundance of caution. While their food probably isn't poisoned, someone tastes it first anyhow, just to be safe. While they are unlikely to be shot if they choose to take a late-night stroll by themselves down Pennsylvania Avenue, the Secret Service won't allow it, just to be safe. While they are not likely to crash a car should they get behind the wheel, they aren't allowed to drive (outside the White House grounds), just to be safe. For the President to take a drug that's only been lightly tested, and that hasn't been tested at all on people with their particular risk factors, runs entirely contrary to the overabundance of caution that is practiced at all other times. And so, he shouldn't have done it, and the Secret Service shouldn't have allowed him to do it.
Q: Is there a quorum requirement for the Senate Judiciary Committee? If a few Republicans are unavailable and no Democrats showed up, could this cancel their meetings? R.W., Chicago, IL
A: Yes, there is a quorum requirement. As you can see here:
Seven Members of the Committee, actually present, shall constitute a quorum for the purpose of discussing business. Nine Members of the Committee, including at least two Members of the minority, shall constitute a quorum for the purpose of transacting business. No bill, matter, or nomination shall be ordered reported from the Committee, however, unless a majority of the Committee is actually present at the time such action is taken and a majority of those present support the action taken.
However, a combination of Republican illnesses and Democratic quorum-busting is not going to torpedo the nomination of Amy Coney Barrett, which is what we suspect you are getting at. First of all, Senate Majority Leader Mitch McConnell (R-KY) is perfectly entitled to add new members to the committee, on either a permanent or temporary basis, as needed. Second, the approval of the Committee, while customary, is not legally required. Should it be necessary, McConnell could arrange to amend Senate rules to remove that step from the process.
that Senate Minority Leader Chuck Schumer (D-NY) "took control of the Senate floor in order to force a vote later this
week" and you said "it is theoretically possible for any senator to force a vote like this, but they almost never do it,
for fear that Senate business would grind to a halt. It is this tradition that gives Mitch McConnell such an iron grip
on the Senate's agenda."
What prevents the Democrats from invoking this strategy to run out the clock on the Supreme Court nomination? R.W., Chicago, IL
A: As with the question above, Mitch McConnell would just amend the rules to disallow the behavior. The Republicans would like the option to remain available for the day that they are in the minority again, but saving it is not worth giving up a Supreme Court seat.
Q: If Joe Biden were to win the electoral vote by 270-268 but died between Election Day and the actual meetings of the electors, are there scenarios in which some Biden/Harris electors in some states would still be required to vote for Biden as president whereas other Biden/Harris electors in some other states would be forbidden from voting for Biden as president? Could the election thus be thrown into the House (say, Trump 268, Harris 230, Biden 40) even though the electoral vote seems clear? E.B., Wiesbaden, Germany
A: We wish we could give you a clear answer, but there isn't one.
To start, there are 17 states that place no restrictions on electors. There are another 16 (plus D.C.) that forbid electors from being faithless, but that impose no penalty for the behavior. There are three more states where the penalty for faithlessness is just a fine. That means that we're really only talking about the 14 states (Arizona, Utah, Colorado, Oklahoma, Michigan, Maine, North Carolina, Indiana, Nebraska, Minnesota, Montana, Washington, Alaska, and Hawaii) where state law decrees an elector's vote to be nullified if they cast it for a candidate other than the one to whom they are pledged.
Should there be a death between the election and the meeting of the electors, any of these things are possible in those 14 states:
- The state legislature could change (or clarify) the existing law
- The state AG could announce that violations of the law will not be prosecuted
- The electors could vote for a living person and dare their state officials to do something about it
- The electors could file suit and argue on the basis of state or federal law that of course they are not bound to vote for a dead person
Thinking about all of this, though, we'd like to amend our assessment from yesterday. Should one of the presidential candidates die, their Party could make clear what the final partnership will look like. However, the smart move would be to instruct electors to vote exactly as pledged, and then to let the constitutionally-outlined process play out. In other words, let the electors elect a dead president and a live VP, then let the live VP ascend to the presidency, and then let the VP-turned-president tap the Party's preferred VP replacement.
Q: Considering the latest turn of events, could we see Time Magazine announcing a Microbe of The Year? G.G., Albany, OR
A: It's possible. They've chosen inanimate objects twice before: The Computer (Machine of the Year, 1982) and The Endangered Earth (Planet of the Year, 1988). And it certainly would be a giant poke in the eye for Donald Trump, who thinks that he should be person of the year every year.
That said, the editors tend to get tired of explaining that Person of the Year is not an honor, it's just a signifier of impact. But even appearing to "honor" a disease might not go over too well. So, they are likely to go with something like "Those on the Front Lines of COVID-19." That's much more positive and will move more product than choosing the disease itself, and the magazine has honored groups many times in the past (including Ebola fighters in 2014).
Q: Absentee ballots, SCOTUS nominee, debate debacle, tax return madness, and now the President, First Lady, Hope Hicks, and God knows who else in senior leadership has COVID-19. Are we overwhelmed because we're living this October insanity, or is this truly one of the wackiest and most bizarre pre-election months ever? S.B., New Castle, DE
A: You're not imagining it; it's one for the history books. Looking for other truly topsy-turvy months, we notice that they usually take place in the midst of a war. For example, if we define "month" as "30 days," then from Aug. 4 to Sept. 4, 1864, the South lost Mobile Bay (thus completing the Union blockade); Petersburg, VA began to yield to pressure from U.S. Grant; and Atlanta fell to William T. Sherman. As a consequence of these events, Abraham Lincoln went from a dead duck to a guaranteed winner.
If we must limit ourselves to a calendar month, then October 1968 would probably be the pick. Against the ongoing background of protest and violence in the streets and the aftermath of the Kennedy and King assassinations, that month gave us a massive new offensive in Vietnam (Operation Sealords), followed by the October Surprise that give October Surprises their name, namely the announcement that bombing had stopped and that the War might end soon (a chance for peace that was scotched by Dick Nixon's backdoor maneuvering). And in between those major War-related stories, the country got involved in a major culture wars battle after Olympians Tommie Smith and John Carlos did the Black Power salute while receiving their medals for winning the 200-meter dash.
Anyhow, the last month is certainly right up there with the tough months the country experienced in 1864 and 1968, even if we don't have a major war underway right now. Or maybe we do.
Q: I am not, by any means, a fan of Donald Trump. But please explain how The New York Times can legally obtain and print the tax returns of the President (or anyone, for that matter). D.S.B., Canandaigua, NY
A: Thanks to the First Amendment, The Times is allowed to print nearly anything it can get its hands on, including the Pentagon Papers, the Panama Papers, stuff from Wikileaks, stuff from Edward Snowden, people's personal medical records, and people's personal income taxes. In 1971, the Supreme Court ruled 6-3 that the Washington Post could publish information about the Vietnam War that was highly classified, even though the person who gave them the information broke the law doing so. That means that whoever gave the tax returns to The Times would likely be in big trouble, if their identity becomes known. However, the only way the paper could really be in legal trouble is if they hired someone to do illegal stuff, like burgle the offices of the President's accountants (Mazars) or to hack the servers of the Trump Organization.
Q: I know you don't like to speculate, but do you think that a relative increase in early voting may have had something to do with The New York Times' Trump tax story "breaking" in September? D.M., Granite Bay, CA
A: We have no problem speculating as long as we feel we are on sound footing. And we have no doubt that the release of the tax returns was timed very carefully. However, it has nothing to do with early voting. The timing was very clearly to put Donald Trump in a bad position immediately before the first debate.
Q: During the debate, President Trump said all law enforcement are endorsing him, and none support Joe Biden. Is this true? Does Biden have no endorsements from law enforcement? E.G., Indianapolis, IN
A: Biden has lots of law enforcement endorsements; you can see a partial list (190 of them) here. Also recall that if, say, the Police Benevolent Association of the City of New York endorses Trump, it does not mean that all members support the President, merely the majority.
One of the endorsements that Trump bragged about during the debate, incidentally, was that of the "Portland" sheriff. Portland, like most cities, does not have a sheriff. Multnomah County, where Portland is located, does, however. And here is what the Multnomah sheriff tweeted immediately after the debate:
In tonight's presidential debate the President said the “Portland Sheriff” supports him. As the Multnomah County Sheriff I have never supported Donald Trump and will never support him.— Mike Reese (@SheriffReese) September 30, 2020
Q: In a survey of Spanish-speaking viewers, Telemundo found that 66% thought Trump won the debate, with 34% thinking Biden won. This is almost the exact opposite of Trump and Biden's respective support among Latino voters in virtually every other poll. How do you account for this result? Did Trump's performance win over a large chunk of this demographic? L.B., Savannah, GA
A: It's easy to account for the result. The poll is unscientific garbage.
As you can see for yourself, if you wish, it was an insta-poll conducted via Twitter. That means the sample was not representative. In fact, many respondents may not actually be Spanish-speaking (Twitter offers a translation option, and besides, it's easy enough to parse what it says). Further, there is nothing to keep someone from clearing their cache and voting twice. Or 200 times. Since they got fewer than 10,000 responses, it would have been easy for a few highly motivated folks to skew the results. Sacrificing a chicken and reading the entrails would have been more methodologically sound.
Q: When flipping through channels the other day, I ended up on Fox News during coverage of a Donald Trump speech. I watched for a minute out of curiosity and noticed that some of his supporters in front of the podium kept holding up a book with the cover facing away from Trump so the cameras would pick it up. The book had a white cover and was titled The Memo in big red letters. I tried searching the title, but none of the books I found looked like the ones being held up at the rally. Do you have any idea what this book might be? I know Trump supporters have a tendency to hold up signs related to QAnon. Could it have something to do with that? E.S., Sparta, NJ
A: You're on the right track. The book was undoubtedly The Memo: Twenty Years Inside the Deep State Fighting for America First, which was published this week by Rich Higgins. Though Higgins does not appear to be Q, they both claim to be insiders who have witnessed the machinations of the deep state firsthand. It's true that Higgins has been a federal employee for many years, both in military and civilian capacities. It's also true that he got fired by former Trump NSA H.R. McMaster for being a conspiratorial kook. For example, Higgins believes that the players who kneel during football games are in cahoots with Middle Eastern jihadists.
Q: What are the actual possibilities for a write-in candidate to win electoral votes? For instance, Bill Weld is still listed as an active candidate in Maryland, and if he received enough write-in votes he could receive electoral votes. M.S., Annapolis, MD
A: The chances are near zero. There are eight states that do not allow write-in votes at all. There are another 32, including Maryland, that only allow write-ins for candidates who have filed official write-in eligibility paperwork. Since serious politicians don't want to look desperate and pathetic, they don't bother, and nearly all the legal write-in candidates are folks who thought it would be a hoot to "run for president" or who are making some sort of statement (like, say Vermin Supreme). There are just 10 states (plus D.C.) where any and all write-ins are allowed: Oregon, Wyoming, Iowa, Mississippi, Alabama, Pennsylvania, New Jersey, Rhode Island, Vermont, and New Hampshire. And in those states, getting the correct number of people to risk their vote on a crazy write-in scheme, and then making sure those folks all cast their ballots correctly (correct procedure, correct spelling, etc.) is a very, very tall order.
Q: If the campaigns are swimming in so much money, why don't they hire some buses and drive voters to the polls? A few buses on a regular route might take hundreds of people to the polls. A.P., Bloomington, IN
A: They do. In particular, Republicans like to send buses to pick people up after Sunday services at evangelical churches, and Democrats like to send buses to pick people up after Sunday services at Black churches.
Q: I know the DNC and the Biden campaign have been planning for post-election chaos with hundreds of lawyers. Do you expect them to share strategies on how they are going to counter what could be coming, or will they keep their cards close to their chests? A.S., Hartford, CT
A: They will certainly play things close to the vest. First, because Team Biden, unlike Team Trump, is not full of blabbermouths. Second, because the Democrats are playing defense, and cannot know exactly what they will do until the moment arrives. Third, and most important, because the Democrats are concerned primarily with winning a legal battle. The Republicans, by contrast, are actually more concerned about winning a PR battle, and planting seeds of doubt into the minds of Americans. That goal is best served by talking a whole lot about all the "totally legit" legal options they are pursuing.
Q: Regarding Sen. Lindsey Graham's (R-SC) comment about Trump stealing the election by way of a friendly Supreme Court ruling, what's stopping them? The idea didn't occur to me before seeing Graham's comment. Now it seems like a foregone conclusion. Ram through a SCOTUS nominee, take the political hit, then just have the new Court name Trump president for "insert jaw-droppingly corrupt reason." S.S.L., Norman, OK
A: We are working on a longer version of this answer for sometime later this week. But the short version is that, in the end, the final arbiter is not the Supreme Court, it's the Congress. Modern-day Democrats are, as we know, generally in favor of decorum and playing by the rules and get queasy about bending the rules. That said, with four years of Trump behavior already in the books, and with another four potentially looming, you can expect them to get over their queasiness very rapidly should it become necessary. On Jan. 6, Congress will count the electoral votes. It gets the final say if there are disputes, such as multiple slates of electors being submitted. If SCOTUS tries to steal the election with made-up legal sophistries, the Democrats will ignore them. Nancy Pelosi will channel the spirit of Andrew Jackson and declare: "John Roberts has made his decision. Now let him enforce it." Her lawyers may put it differently, as in "Congress is a co-equal branch, not one subservient to the Supreme Court, and the Constitution gives Congress the power to count and tally the electoral votes." But the result will be the same.
Q: I caught part of an interview with Sen. Ted Cruz (R-TX) on NPR recently. He was there to peddle
his new book. Cruz was lamenting that many Supreme Court appointees have "gone rogue" and not voted in cases as the
appointing President would have wished. He also noted that of these non-conforming justices, they have all drifted more
liberal. Leaving aside the quaint idea of appointing the most qualified jurists to the High Court, instead of
pre-vetting them via the Federalist Society, Cruz got me thinking. The names of several justices who have drifted
leftward in their decisions—Earl Warren, Harry Blackmun and David Souter, for example—quickly come to mind.
Of justices drifting rightward in their outlook...well, possibly only Byron "Whizzer" White. As students of U.S.
history, do you agree with Cruz's observation regarding previous justices becoming more liberal with time on the bench,
and if so, what do you think contributes to this shift?
Incidentally, here are some thoughts from Nate Silver on this topic. He and Cruz both mention the so-called Greenhouse effect—that the justices are yielding to pressure from left-leaning, award-winning, longtime New York Times Supreme Court beat reporter Linda Greenhouse. I don't put much stock in that and think it is just bashing the evil NYT. M.A.K., Sacramento, CA
A: There's definitely something to be said for the phenomenon, though it's post-1950 or so that we are talking about here. Before that, the drift of SCOTUS judges would not really be plottable on the modern-day conservative-liberal spectrum. For example, Chief Justice William Howard Taft got more pro-commerce over time, but also more pro-the-rights-of-poor-people.
As to the explanation Cruz offers, and the multiple explanations that Silver offers, they do have the virtue of being...exotic. And some of them probably contain some amount of truth, though it is hard to believe that Silver could write with a straight face that maybe justices become more liberal over time because they don't want to be uncomfortable at Washington cocktail parties.
For our part, we think there are two pretty simple explanations for the trend. The first is small sample size. It's not like all recent justices have drifted (ahem, Clarence Thomas). We're really talking about half a dozen or so. If you flip a coin six times, it's entirely plausible it could come up heads five times without anything unusual going on.
The other explanation is that the Republican Party has moved aggressively rightward in the last 50-60 years. So, someone who is appointed as a "moderate Republican" and then serves for 15-20 years could appear to be "drifting leftward" merely by staying in place. To take an outlandish—but hopefully instructive—example, what if "Mr. Conservative" Barry Goldwater had been appointed to the Court by Ronald Reagan in 1982 and was still alive today? Goldwater, who was ultra-right in his time, would be casting pro-marijuana, and pro-LGBTQ, and pro-choice votes left and right. At very least, he'd be a swing vote today, and he might even be identified with the left wing of the Court.
Q: If the Supreme Court overturns Roe v. Wade but Democrats control the House and Senate and have killed the filibuster, could Congress pass legislation saying that abortion is legal and must be available in all states (presumably with guidance to further define what counts as "available")? A.T., Arlington, MA
A: That depends a lot on the basis for the Court's decision. If they merely find that states have a right to limit abortion, then the Supremacy Clause allows Congress to pass laws that supersede state laws. On the other hand, if the Court finds that abortion clinics are illegal because a fetus is a person with rights, then Congress' hands would probably be tied. Of course, declaring a fetus to be a legal person has all kinds of complications. For example, a pregnant woman would then need a passport for her fetus to travel internationally (and passport photos have rigid requirements), fetuses could inherit property, and much more.
Q: Replying to the question of G.Z. in San Francisco, you wrote that a ban on abortion in a (red) state would not significantly affect middle and upper class women because they could just travel to another state for the procedure. Are you sure? The Irish constitution forbade all abortions for several decades and also made it a crime to travel abroad to obtain an abortion. Could such a strict state law be found constitutional by a very conservative Supreme Court? G.T., Budapest, Hungary
A: As a legal matter, a state cannot punish you for what you did in some other state. So, unless SCOTUS decides that paying attention to the Constitution is for suckers, a law like this would not stand up to a legal challenge.
As a practical matter, this would be extremely hard to catch, much less prosecute. If a woman leaves Georgia pregnant, and comes back not pregnant, it would be unusual for someone in a position of authority to notice the "crime." And even if they did (say, tipped off by a conservative OB-GYN), the woman could say "I had a miscarriage while traveling." It would not be easy to prove otherwise.
No, overreaching laws like these are more about showing off for your base, and not about actually prosecuting anyone.
"[Amy Coney Barrett] agrees with Education Secretary Betsy DeVos that college men
accused of sexual violence are entitled to full due process."
What other category of people do you think do not deserve "full due process"? N.T., Dallas, TX
A: That was our shorthand way of communicating that Barrett and DeVos are on the side of folks who think that males accused of sexual assault have been put in unfair positions by politically correct radical-left pro-feminist universities, and so need to be protected.
DeVos, Barrett, etc. are right that there's a problem, but it's not exactly the one they detect. The real issue is that universities have neither the expertise nor the necessary legal powers to properly investigate sexual assault. They should be turning such cases over to the pros. But because image is very important, they often don't go to the pros, and instead do a poor job themselves, often with "let's keep things under wraps" a more important goal than "let's make sure justice is done." It's true that some men have been trampled by the system. It's also true that some men have been carefully protected (particularly if they just so happen to be very good at football).
Nobody seriously opposes "full due process" in the case of any felony-level crimes. If you want a situation without full due process, it's lesser crimes. If you get a speeding ticket, you broke the law, but you don't get read your rights, you can't have a state-appointed attorney, you can't have a jury trial, and you don't have all that many rights of appeal.
Q: When a new member joins the Supreme Court, I'm sure that the sitting judges have personal opinions about the experience, politics, demeanor or other aspects of the incoming judge. Are you aware of any instances where those views have become public, or even shared among the other justices? Or are they always kept private? On retirement, have any justices unloaded their true feelings about the justices they served with? D.H., Boulder, CO
A: Modern-day justices tend to be pretty diplomatic, but it wasn't always so, and some justices of generations past were positively outspoken, not only in any memoirs they might write, but sometimes in person, and sometimes even in open court. The most notorious example is Associate Justice James Clark McReynolds, who served 1914-41, and who was openly racist, anti-Semitic, misogynistic, etc. He would refuse to speak to justices who were "too liberal" or who were Jewish, and would often show his disdain by reading a newspaper, right there in open court, whenever these folks dared to speak. He would make extremely homophobic remarks about men who wore wristwatches (he found anything other than a pocket watch effeminate) and would physically grab cigarettes or cigars out of the mouths of anyone who dared to smoke around him. The aforementioned William Howard Taft, who had to deal with this for a decade as chief justice, greatly disliked McReynolds and didn't make much of a secret of it. When McReynolds died, none of his colleagues found time to attend his funeral.
And, of course, for 200 years justices have taken none-too-subtle shots at one another in their decisions and, in particular, in their dissents. That happened in John Marshall's day, and it happens now. Here is an example from John Marshall Harlan, as he became the only justice to dissent in the case of Plessy v. Ferguson (1896):
In the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful...The arbitrary separation of citizens on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds.
Perhaps, given the legalese, this seems diplomatic. But what Harlan is saying, in so many words, is: "You are pulling this decision out of your rear ends because you're a bunch of un-American racists."
Q: In the debate, Donald Trump refused to promise a peaceful transfer of power. My question is: What are the most damaging things that presidents have done when voted out of office? L.M.S., Harbin, China
A: There have been 35 men who exited the White House at the ends of their terms. And all of them either cared about the norms of democratic government, or their reputations, or both enough to avoid going scorched earth. Before Donald Trump, the most "egregious" poke in the eye given by an outgoing president to an incoming one was refusing to appear at the incoming president's inauguration (something that only the Adamses and Andrew Johnson did).
So, we've got no cases of leaving office in a "blaze of glory," as it were. The closest we can come is that 15 years after leaving office, John Tyler suborned open rebellion against the government he once led, and then turned traitor and joined the Confederate Congress. That's pretty bad, even if it was on a delay.
Q: I'm sure before the Internet, before phones, before electricity, that election results took some time to conclude. What does our history tell us about Americans waiting for results? P.H., Washington, D.C.
A: History tells us that it's not a big deal unless someone chooses to make it a big deal. You're right that, back in the day, people often had to wait days or weeks for a result. They had no issues with that. And we don't even have to go back to the pre-electricity era, if we don't want to. In 1960, the results weren't clear until about 4:00 p.m. the day after Election Day. Nobody claimed that tainted the results. In 2000, which most or all of us remember, the results weren't clear for many weeks. It's true that many people grumbled and complained about that election (and continue to do so), but it's not the delay in figuring out the result that is the problem.
Q: Do you think there's any real possibility that America's democracy will be destroyed if Trump wins reelection? F.S., Cologne, Germany
A: Yes. He cares nothing for the norms of democratic government, nor for the world order that at least 16 presidents carefully constructed over the course of the last century. If he has another four years in which he is no longer concerned with getting reelected, who knows what he might do? Particularly if he is persuaded that leaving office means going to prison.
Note that this is not us being hysterical and predicting that democracy will die. It's just us saying that it's certainly a possibility, vastly more so than under any of Trump's 43 predecessors.
Q: It is my understanding that the Oregon Territory was once jointly administered by Great Britain
and the U.S. until the boundary between Canada and the U.S. was established by the Oregon Treaty of 1846. Can this
treaty be renegotiated? Could the people of Oregon and Washington ask that the treaty be modified to let portions of
those states become part of Canada? I know it's not likely, but it is an interesting thought.
I grew up indoctrinated in American exceptionalism as much as anyone else my age (70s), but I really wonder now if the U.S. winning the Revolutionary War was really a good thing. G.H., Newport, OR
A: Wait a minute. Is this part of that scheme to reclaim Maine, Michigan, etc. we tried to warn people about yesterday? Do you really live in Newport, OR, or is it actually Newport, QC? We're on to you, Mr. H. Or should we say...Monsieur H.?
In any case, even if Donald Trump and Justin Trudeau managed to make a deal like this, and even if Congress signed off on it, it will still face an uphill battle unless most of the affected residents of Oregon and Washington were on board. International, Canadian, and American law all recognize the right of self-determination, meaning a government cannot just "give" citizens away without their consent.
But if you Oregonians—or is it you Québécois?—are on board with changing countries, then it's probably doable. There are some island nations (e.g., Kiribati) that are, as we speak, trying to find land they can purchase and relocate to because they believe their current land is going to be underwater within a decade or two.
Let's spell this out: According to today's polls, Joe Biden is up in Arizona, Florida, Georgia, Michigan, North Carolina, New York, Pennsylvania, and Wisconsin. Does that sound like good news for him? Some of his leads are within the margin of error, but it is better to be ahead within the margin of error than behind within it. (Z)
|Arizona||47%||44%||Sep 23||Sep 26||Redfield and Wilton Strategies|
|Arizona||50%||46%||Sep 26||Sep 30||Suffolk U.|
|Florida||48%||43%||Sep 23||Sep 25||Redfield and Wilton Strategies|
|Georgia||45%||44%||Sep 23||Sep 26||Redfield and Wilton Strategies|
|Michigan||50%||44%||Sep 30||Oct 01||PPP|
|Michigan||51%||42%||Sep 23||Sep 26||Redfield and Wilton Strategies|
|North Carolina||47%||45%||Sep 23||Sep 26||Redfield and Wilton Strategies|
|New York||61%||29%||Sep 27||Sep 29||Siena Coll.|
|Pennsylvania||50%||44%||Sep 23||Sep 25||Redfield and Wilton Strategies|
|Wisconsin||48%||43%||Sep 23||Sep 27||Redfield and Wilton Strategies|
We doubt that Ossoff has a lead that large but, at this point, it's clear that race is anyone's game. Meanwhile, Martha McSally and John James can commence their Christmas dinners right now, since their goose is definitely cooked. (Z)
|State||Democrat||D %||Republican||R %||Start||End||Pollster|
|Arizona||Mark Kelly||49%||Martha McSally*||40%||Sep 26||Sep 30||Suffolk U.|
|Georgia||Jon Ossoff||47%||David Perdue*||42%||Sep 23||Sep 26||Redfield and Wilton Strategies|
|Michigan||Gary Peters*||48%||John James||41%||Sep 30||Oct 01||PPP|
* Denotes incumbent
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---The Votemaster and Zenger
Oct02 House Approves COVID-19 Relief Measure
Oct02 Trump Finally Condemns White Supremacists
Oct02 New York City Botches the Absentee Ballots
Oct02 The Pope Is No Dope
Oct02 Could McCain Bring in Arizona for Biden?
Oct02 Money, Money, Money
Oct02 Today's Presidential Polls
Oct02 Today's Senate Polls
Oct01 Some Takeaways from the Debate
Oct01 Results of a Debate Focus Group
Oct01 Republicans Fear Trump Blew It
Oct01 Senate Republicans Locate Missing Spines and Other Body Parts
Oct01 Biden Urged to Demand New Debate Rules--but He May Not Have to
Oct01 Money Is Pouring in for the Democrats
Oct01 Both Parties Worry about Absentee Ballots
Oct01 Barrett Won't Pledge to Recuse Herself from 2020 Election Cases
Oct01 Appeals Court Lets Extended Deadline for Ballot Receipt in Wisconsin Stand
Oct01 The Six Races That May Determine Whether Future Elections Are Honest
Oct01 Voters Don't Expect to Know the Winner Nov. 3
Oct01 Seniors Are Up for Grabs in Florida
Oct01 Today's Presidential Polls
Oct01 Today's Senate Polls
Sep30 What a Sh*tshow
Sep30 All of Trump's Success Is Based on Two Lucky Breaks
Sep30 Biden and Harris Release Their 2019 Tax Returns
Sep30 The Nerd Who Could Save America
Sep30 A COVID-19 Relief Deal Is Still Possible
Sep30 House Democrats Are Moving from Defense to Offense
Sep30 Senate Democrats Are Moving from Defense to Offense, Too
Sep30 Today's Presidential Polls
Sep30 Today's Senate Polls
Sep29 Trump's Tax Troubles
Sep29 Debater Up!
Sep29 (Almost) One Million Votes Cast
Sep29 Biden Picks Up More Endorsements
Sep29 Senate Democrats Dust Off their Bag of Parliamentary Tricks
Sep29 House Democrats Unveil New COVID-19 Relief Bill
Sep29 COVID-19 Diaries: The Land Down Under
Sep29 Today's Presidential Polls
Sep29 Today's Senate Polls
Sep28 Biden Continues to Have a Strong National Lead over Trump
Sep28 New York Times Obtains Trump's Tax Returns
Sep28 Amy Coney Barrett Is on the Ballot This November--and in 2022
Sep28 Trump's Debate Prep: Calling Biden Dumb and a Good Debater
Sep28 The Debate Spin Room Is No More
Sep28 Trump Has Thousands of Lawyers Already Working to Contest the Election
Sep28 White Catholics in the Midwest Could Be a Key Demographic for Biden
Sep28 Biden Refuses to Take a Position on Expanding the Supreme Court
Sep28 Absentee Ballot Requests Are Setting Records