• SCOTUS Derby Is Underway
• Senator's Stroke Brings to Mind Democrats' Worst Nightmare
• Democrats Release Electoral Count Act Proposal
• The Filibuster Does Not Facilitate Debate
• Commander Decision?
It really does seem like every day there's news that digs the hole deeper for Donald Trump, or one of his acolytes, or both. The latest is reporting from The New York Times, which reveals the former president's close involvement in a scheme to seize voting machines in key swing states that went for Joe Biden.
It was already known that this idea was bandied about by people in near-Trump orbit, including disgraced lawyer Sidney Powell and disgraced former NSA Michael Flynn. The general idea (or, should we say, the general's idea) was that the machines would be seized, and then the federal government would either "discover" that they were hopelessly compromised, or that they had undercounted Trump's votes, or both. In theory, that would justify flipping Arizona, Pennsylvania, Georgia, and Michigan to the Republican column. It's obviously a very desperate plan. It is also, if we may be so bold, a very dumb plan. It boggles the mind that they really thought the country would just passively accept "corrected" election results coming directly from the White House.
In any event, what the new reporting from the Times has revealed is that Trump was not only interested in the scheme, he put serious effort into trying to make it happen. Not only was a draft presidential order written, but there was significant discussion about which federal department should handle the task. Flynn and Powell preferred that it be the Department of Defense, since the DoD has heavily armed soldiers at its disposal. It is not often that the phrase "voice of reason" appears in the same sentence with "Rudy Giuliani," but it would seem that was the case here, as he convinced all the conspirators that the DoD would never go for it.
Another option was the Department of Justice, since it has heavily armed police officers at its disposal. Trump approached then-AG Bill Barr about the possibility, but Barr said "not happening." With DoD and DoJ off the table, next up was the Department of Homeland Security. Giuliani, demonstrating that this "voice of reason" stuff only goes so far, agreed to an order from Trump to make the call to acting deputy secretary Ken Cuccinelli. Cuccinelli also refused to help with the plan. The former president might plausibly have started firing people and replacing them with lackeys (well, acting lackeys) who might have tried to do his bidding. However, the pushback Trump got from Giuliani, Barr, and Cuccinelli convinced him to abandon the plan.
The obvious point here is that, day by day, we get a fuller picture of a president who did everything possible to subvert the electoral system in order to keep himself in office. Nobody is an expert in situations like this, since there's never been a situation like this. But surely, the likelihood that the Department of Justice goes after Trump, and the likelihood that they nail him to the wall, both just keep increasing. After all, if he didn't clear the bar for conspiracy, or sedition, or suborning insurrection, then why does the bar even exist?
Meanwhile, the other takeaway that many outlets had was something along the lines of "see how close the democracy came to failure?" To take one example, from among many, the subhead of this piece from Vox is "The major question—use the military or ask DHS?—shows how perilous things were for democracy."
We actually think that the lesson here is the exact opposite. Trump tried to pull off the scheme, and even most of his loyalists—including all of those who had actual power—flatly refused to go for it. And even if the former president had found willing acolytes, there is little chance that states would have played along and willingly surrendered their voting machines in service of an obvious plot to steal the election. And even if the states had played along then, as we already noted, there is zero chance that the roughly 250 million Americans who did not vote for Trump would have tolerated an obviously manufactured Trump win. Well, maybe the pre-kindergarteners might have gone along if mommy said it was a good thing, but most of the others, not so much.
In short, stealing a presidential election is really, really hard, and Trump and his minions have shown, again and again, that they don't have what it takes to pull it off. We look forward to exploring this point more when we resume the slow-moving coup series. (Z)
Now that Stephen Breyer has announced his intent to retire, it's soap box derby time, as candidates pull ahead and fall back in the race to the finish line. The candidates themselves would not publicly campaign for the job, as that would be gauche, but that doesn't mean that their chances won't ebb and flow due to external events.
The favorite, of course, is Judge Ketanji Brown Jackson. You might say that she had a head start, or that she got the quickest jump out of the gate. Indeed, it's possible that she's the person that Joe Biden had in mind all along. She was twice appointed to office during the Obama years, first to the U.S. Sentencing Commission, and then to the U.S. District Court for the District of Columbia, so candidate Biden was certainly aware of her.
Over this past weekend, there was a slight shift in momentum in favor of Jackson's closest competitor, J. Michelle Childs. It's not a secret that Childs is the preferred candidate of Rep. Jim Clyburn (D-SC), whose support may have saved Biden's presidential bid. And appearing on "Face the Nation" on Sunday, Sen. Lindsey Graham (R-SC) had nothing but praise for Childs: "I can't think of a better person for President Biden to consider for the Supreme Court than Michelle Childs. She has wide support in our state, she's considered to be a fair-minded, highly gifted jurist. She's one of the most decent people I've ever met."
There could be certain opportunities here, not only from granting Clyburn's wish, but from picking a candidate that has such enthusiastic support from Graham. It would be rather hard for the South Carolina Senator to vote against Childs, and that would provide an insurance policy that may just be needed (see below). Further, Graham would probably drag a few other Republican votes along with him. The junior senator from South Carolina, Tim Scott (R), is Black after all, and might not object to a Black woman from South Carolina. And that, plus the Senator's own words, would help to blunt complaints about the pick being "purely partisan" or "not really qualified."
Developments in the last couple of days swung the momentum back in Jackson's favor, however. First of all, now that Childs has emerged as a serious candidate, it's time to look for skeletons in closets. And one has thus far presented itself. It wasn't too hard to find, since all someone had to do was read Childs' Wikipedia page. The issue is that when she was in private practice for close to a decade, from 1991-2001, she worked for the firm Nexsen Pruet. And during that part of her career, she spent much time representing employers as they tried to fight off unionization efforts and/or allegations of discrimination based on gender or race. This chapter in Childs' career will not please the Democratic base, particularly labor and the progressives.
Meanwhile—and this was surely just a coincidence, but boy was the timing serendipitous—Jackson issued her very first opinion since being seated on the U.S. Court of Appeals for the District of Columbia Circuit. The case was AFL-CIO v. Federal Labor Relations Authority, and centered on Trump administration efforts to help weaken unions. In the ruling, Jackson came down strongly on the side of the AFL-CIO.
So, you have one candidate whose record on labor is not great, from a Democratic perspective, and one whose pro-labor bona fides have just been emphasized in dramatic fashion. Given the voters that Biden and the Democrats are trying to win back, this choice might end up being an easy one for the President. Of course, you never know what the rest of the week, or the month, will bring. (Z)
Late last week, Sen. Ben Ray Luján (D-NM) suffered a stroke. The good news is that he quickly underwent surgery and he is expected to make a full recovery.
This incident has served, as you might imagine, as a reminder of how close the Democrats are to having their worst fears come to pass. Luján is one of the 10 youngest members of the Senate, and yet he was (temporarily) felled by a condition that often proves fatal. No senator's continued good health is a certainty, even that of the one who's not yet old enough to be elected president (Jon Ossoff, D-GA, is 34). Luján is from a blue state, of course, and would have been quickly replaced by a Democrat had the worst come to pass. But if he was from a state with a Republican governor, or possibly even a blue state that holds off on replacements if an election is close? It could have been vaya con dios to that seat on the Supreme Court (though Stephen Breyer would just remain on the Court in that case, and Democrats would start praying that he hangs on for however many more years are needed).
As it is, it's not clear when Luján will return to work. And while the Senate allows proxy voting in committees, it's not allowed for floor votes. So, if the Senator is out for an extended period of time, then the Republican conference can keep a nominee from being confirmed if they all stick together. All of a sudden, the possibility of peeling off a Lisa Murkowski (R-AK), or a Susan Collins (R-ME), or even a Lindsey Graham becomes more relevant.
That said, members have gone straight from their hospital beds to the Senate chamber before. Pete Wilson did it in 1985, and Clair Engle did it just two weeks after brain surgery in 1964. Engle's vote was needed in order to save the Civil Rights Act of 1964, and he was so fully incapacitated that he couldn't speak, and had to vote by pointing to his face (eye = "aye"). So, if it becomes necessary, Luján may still be able to cast a key vote or two during his convalescence (though he's in New Mexico right now, and so obviously would have to be transported to Washington first). (Z)
Increased protections for Americans' voting rights may or may not happen prior to this year's elections. If you had to bet right now, you should probably bet on "not happening." However, changes to the Electoral Count Act (ECA) are certainly possible, and even likely. First of all, there's more time to get something done, since the ECA won't be needed again until 2024. Second, partisans on both sides are motivated to make electoral-vote-certifying shenanigans more difficult. Democrats don't want to see a coup, and Republicans don't much care for the thought of a world in which Donald Trump or Gov. Ron DeSantis (R-FL) are a law unto themselves, or for the possibility that Kamala Harris could claim to be the final decider when it comes to the presidential result.
Members of the Senate Democratic caucus—with Angus King (I-ME), Rules Committee Chair Amy Klobuchar (DFL-MN), and Judiciary Committee Chair Dick Durbin (D-IL) taking the lead—now have a first draft of legislation that would overhaul the ECA. The main elements:
- A clarification that the role of the VP is purely ceremonial
- An increase in the number of members it would take to object to a state's electoral votes, from the current "one in
each chamber" up to "one-third of the members of each chamber."
- An increase in the number of members it would take to sustain such an objection from the current "simple majority"
up to "a three-fifths majority."
- Restricting the list of valid reasons for raising an objection to a state's electoral tally
- Setting a firm deadline of Dec. 20 for states to resolve all disputes and commit to a final slate of electors.
- Making it more difficult, and more costly, to submit slates of fake electors. Feel free to call that portion the "Giuliani Rule."
It's early in the process, of course, and you never know how the sausage will turn out. However, as noted, members of both parties have motivation to repair the weaknesses in the system that have shown themselves. Further, there are actually two groups of senators working on legislation right now; in addition to King, Klobuchar, and Durbin (which would make an excellent name for a folk-rock trio, incidentally), there's also a group being led by Susan Collins and Joe Manchin (D-WV). The latter contingent isn't as far along in the process, but their proposed bill will also clarify the ceremonial nature of the VP's role and will make it harder to object to slates of electors. So those two things, at very least, seem likely to become law. (Z)
Readers who have seen the movie My Cousin Vinny will recall how defense attorney Vincent LaGuardia Gambini responds to the prosecution's opening statement:
The clip is just 9 seconds, but if you don't care to watch it, and you don't know the movie, and you don't see the title of the clip right there, Gambini's rebuttal is: "Everything that guy just said is bulls**t. Thank you."
That is probably a good line to keep in mind anytime you hear Mitch McConnell or Joe Manchin waxing philosophical about the benefits of the Senate filibuster. One of the biggest arguments in favor of the filibuster is that it encourages debate and discussion among the members of the upper chamber. Given that the filibuster seems to be used mostly to send legislation directly to the graveyard, that's a little hard to accept on its face. And a new study from Shu Fu and William G. Howell of the University of Chicago confirms that it is, well, bulls**t.
The study is pretty robust, and considers filibustering from different angles, looking at overall time spent per legislative session, but also zooming in on specific pieces of legislation, like the Affordable Care Act. The two authors looked at the Senate before the modern filibuster was established in the 1970s, and also looked for changes that came after key events in Senate history, like the elevation of McConnell to majority leader. They compared the Senate to the (basically filibusterless) House, using the lower chamber as a control group. And invariably, increased aggression in the use of the filibuster either has no impact on debate and discussion or else it reduces debate and discussion.
Howell, who talked to MSNBC about the study, was more than willing to say that the emperor—or, at least, the Senator—has no clothes:
When you look at 2007, and McConnell's interest in deploying the filibuster in all manner of policy domains ... it was not because those who were using the filibuster were particularly interested in scrutinizing the merits of policy changes to a greater extent, it's because they wanted to block policy change. What they wanted to do was grind things to a halt.
Everyone knew that was the case, but it's nice to have data to back it up. Oh, and our apologies if the thought of a clothes-less Mitch McConnell spoiled anyone's breakfast.
As we've already pointed out, momentum to change or kill the filibuster keeps growing. It's now essentially a requirement for Democratic senatorial candidates, and some day the blue team will have the trifecta and 50 senators whose last names are not Manchin or Sinema. Studies like this one can only help to encourage the upper chamber to get out their steely knives, and to finally kill the beast. (Z)
From 1933 until 2020, Washington's NFL team used a racial slur for its team name. And from roughly 1990 onward, the team's fans spent 10% of their time watching football and 90% of their time explaining how it wasn't actually a racial slur. Team owner Daniel Snyder insisted he would never, ever change the name under any circumstances, but after the murder of George Floyd and the protests thereafter, several of the team's sponsors threatened to walk if there wasn't a change. It turns out that "never, ever under any circumstances" meant "never, ever, under any circumstances, unless it's going to cost me money to keep it," because Snyder folded like a cheap suit in the face of those threats.
Given that switching team names means a lot of market research and filing for trademarks and the like, the team was unable to adopt its new "forever" name immediately, so for a little less than two years, they've officially been known as the Washington Football Team. But that ends today, as the new team name is set to be announced this morning. Presumably the new name will not produce an acronym that looks dangerously close to "WTF."
Actually, although the "big reveal" is today, the new name appears to have leaked. Former Washington football player Joe Theismann, who retains close ties to the team, slipped up this week and said the new name would be "Commanders." He tried to backtrack and "clarify" that name is just the one he "thinks" the team should pick, but the look on his face was similar to a kid caught with his hand in the cookie jar. In addition, a news helicopter flew over the team's stadium last night and got footage showing "Commanders" painted on the wall outside the team store. So, either Snyder has pulled off a really successful misdirection play, or else he's failed to keep the secret.
Anyhow, we mention this because it's a good example of something we wrote yesterday. The original decision to change the name led to lots of griping about "woke culture" and how the libs/the Democrats always trample on everyone's First Amendment rights. The griping has begun anew, and will undoubtedly continue for the next several news cycles. We would be shocked if Tucker Carlson doesn't have a segment on this tonight (though we won't be watching to see if our prediction is proven correct). Of course, the name change has nothing to do with the First Amendment or the Democrats, but as we pointed out, the right wingers blame the Party nonetheless. And so, even if the blue team achieves perfect messaging discipline, and persuades each member to avoid ever saying anything that might be slurred as "woke," it's not going to matter. There will still always be fodder for these attacks.
And if you don't care about any of this because it's sports stuff, we will give you a little bonus bit of information that you might find interesting. Washington wanted to keep their new name secret, but knew full well that reporters would be watching for trademark applications. And so, the trick they appear to have used—Cleveland's baseball team did the same thing when they changed their team name recently—is to file the application in a small country that does not have an online public database for trademarks. As long as that country is among the 170 nations party to the Paris Convention of 1883, then the trademark can be transferred to the United States within 6 months of being filed. As long as nobody filed for "Commanders" (or whatever the new name is) before Washington did, then the trademark is valid in the United States. Intellectual property is definitely one of the more intriguing areas of law. (Z)
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---The Votemaster and Zenger
Feb01 The Biden Trajectory, Part III: He's Out of Touch
Feb01 The Walls Are Closing In
Feb01 Sorry, Mike Pence
Feb01 Sorry, Boris Johnson
Jan31 Biden Gets Lemons in Pittsburgh, Makes Lemonade
Jan31 Pennsylvania Senate Race Is Up for Grabs...
Jan31 ...And So Is the Ohio Senate Race
Jan31 Why Do They Say These Things?
Jan31 Why Does He Say These Things?
Jan31 Pennsylvania Court Strikes Down Absentee Ballot Law
Jan31 Socialists Win Big in Portugal
Jan30 Sunday Mailbag
Jan29 Saturday Q&A
Jan28 The Day After
Jan28 BBB Was Only Mostly Dead, It Would Seem
Jan28 Sinema's Sinking
Jan28 Biden: The Least Bad Option?
Jan28 Maybe Trump Has Finally Hit His Floor
Jan28 This Week in Schadenfreude
Jan28 Looking Forward: The Readers Predict 2022, Part VI: Congress, the Legislation
Jan27 Breyer to Disrobe
Jan27 The Lord Giveth and the Lord Taketh Away
Jan27 Those Texans Sure Are... Inventive
Jan27 Barns Will Burn in Georgia
Jan27 A Useless Idiot?
Jan27 Looking Backward: How Did The Readers Do?, Part VI: Congress, the Legislation
Jan26 Looking Under Rocks for White Grievance
Jan26 The Filibuster May Linger a While Longer, but It's on Life Support
Jan26 Pelosi Is In...
Jan26 ...While Cuellar Has Trouble...
Jan26 ...And Cooper Is Out
Jan26 The Slow-Moving Coup, Part VI: The Good News, Vol. II--The Republicans
Jan25 The Slow-Moving Coup, Part V: The Good News, Vol. I--Time
Jan25 Biden's Trajectory, Part II
Jan25 Biden Has a Reagan Moment
Jan25 It's Still Donald Trump's Party...
Jan25 ...And It's Getting More Authoritarian by the Day
Jan25 Supreme Court to Hear Affirmative Action Case
Jan24 January 6 Was Just the Beginning
Jan24 Blinken: We're Ready No Matter What Russia Does
Jan24 Thompson: We Will Share Information with the Dept. of Justice
Jan24 Arizona Democratic Party Censures Sinema
Jan24 Cheney Is Crushed in Straw Poll
Jan24 Large Majority of Americans Think the Country is Headed in the Wrong Direction
Jan24 Thirty States Have AG Races This Year
Jan24 Biden Makes a Nomination to the Federal Election Commission
Jan24 Ann Coulter Wants a Trump-DeSantis Cage Match
Jan24 Politico Turns 15
Jan23 Sunday Mailbag