• Legal Blotter, Part I: Here Come De Judges?
• Legal Blotter, Part II: DoJ Sues Arizona
• Legal Blotter, Part III: Another Charge for the List
• Legal Blotter, Part IV: Subpoenas for Giuliani, Graham, Eastman in Georgia
• Suffering from Burnout? So Is Philadelphia's Mayor
• More Trouble for Boris Johnson
August 15, 2021. That is the last date on which FiveThirtyEight's Biden approval rating meter had half the country approving of his performance as president (versus 43.8% disapproval). It's been all downhill since then, and this week, the President hit a new low in the FiveThirtyEight aggregator, with just 38.9% approval versus 56.2% disapproval. Not coincidentally, Biden is also setting new low marks in individual polls. For example, the latest from Monmouth has him at 36% approval, 58% disapproval, the worst result he's gotten. Them's Trump numbers.
Most of the things that are hurting Biden—inflation, gas prices—are largely beyond his control. But his latest dip is also being powered by his response to the Dobbs decision—or lack thereof. And that is something that is not beyond his control. Thanks to the leak, everyone knew the basic outlines of the decision 6 weeks in advance. And thanks to the way the Supreme Court works, everyone knew when the decision would be issued, within a fairly narrow range of dates. And yet, there has been little from the White House other than strong words and the observation that it's really up to Congress to do something. Depending on which reporting you believe, the White House was either caught flat-footed by the decision, or it's been planning for Roe to be overturned for months. We're not sure which version, if true, is worse.
It is true that the most popular "solutions" that the President might implement come with significant downsides. Looking at the biggies:
- Allowing Abortions on Federal Land: The main issue here is the Assimilative Crimes Act
(18 U.S. Code 13), which says that if a person
violates a state's laws on federal land within that state, they can be prosecuted by the federal government. Obviously,
Biden could ask the DoJ not to engage in such prosecutions and AG Merrick Garland would probably agree. However, the
statute of limitations is 5 years. That means that any doctor who performed an abortion at, say, the VA in Oklahoma City
would end up on a Republican enemies' list, and would almost certainly find themselves facing federal charges if a
Republican wins the presidency in 2024.
- Declaring a National Health Emergency: This would be a Shakespearean response, in the
sense that it would be a lot of sound and fury, signifying nothing. That is to say, it is not clear that such a
declaration would actually give Biden any meaningful tools to counter the Dobbs decision. And anything he did
try, well, we have a Supreme Court that has taken a narrow view of national emergency powers (both with Biden and with
Trump) and has taken an even narrower view of abortion rights. So, any movement on this front from Biden would almost
certainly lead to an eventual defeat.
- Guaranteeing Access to Abortifacient Drugs: This is the most promising line of attack for the administration, but it comes with challenges. Thanks to the Hyde Amendment, the federal government can't directly distribute or subsidize the drugs. And until red states make clear how they plan to police the mail (if they do try it), the White House can't really adopt countermeasures.
In short, it is clear why the Biden administration thinks its hands are pretty tightly tied.
Nonetheless, and as we've written before, Biden needs to do something big. Maybe many somethings. His fellow Democrats in Washington are unhappy. The White House staff is unhappy. Democratic voters are unhappy. In addition to the poor approval numbers we note above, the Monmouth poll also reports that a staggering 88% of Americans think the country is on the wrong track. With a number like that, what has Biden got to lose?
Donald Trump was, quite obviously, the opposite of Biden when it came to action. The former president was more than happy to go off half-cocked and to let the cards fall where they may. OK, maybe Trump is not the president to look to for inspiration. But you know who else saw tremendous value in big, visible actions, even if they ended up being mostly symbolic, or even if they might get sunk by the courts? Franklin D. Roosevelt. And he's probably a pretty good president to look to for inspiration.
If Biden doesn't do something big, the Democrats will take a beating in the midterms, while the President's chances of winning reelection will be not much better than his chances of winning the Kentucky Derby. And, incidentally, it may not be the suburban women who turn out to be the key. A new story from The New York Times suggests that moderate women are so turned off by the rightward lurch of the Republican Party that they'll hold their noses and vote Democratic even if they don't like the Democratic candidate. The real problem might be... Generation Z (and younger voters in general). They are not going to flock to the GOP en masse. However, if they think things are hopeless and they see no point in voting (see: 88% of Americans think the country is on the wrong track), then they'll just stay home on Election Day 2022 and 2024. As the linked story notes: "There's a fine line between the recent events pushing someone to never vote again or pushing someone to vote ... and bring friends." (Z)
There is one upside to letting the Federalist Society pick all the judges, as recent Republican presidents have tended to do: There's never a shortage of candidates. If there were, say, 10 vacancies on the federal bench, all Donald Trump had to do was call up Federalist Society president Eugene B. Meyer and ask him to send over the next 10 names on the list. The Senate might reject a real stinker, once in a while—say, if the candidate can't answer basic legal questions. But, in general, it was very efficient.
Joe Biden doesn't have anything quite like the Federalist Society at his disposal. Yes, there is the American Constitution Society, and there is also a large network of liberal-leaning legal groups like the NAACP and the ACLU that a Democratic president can lean upon. But it's nowhere near as quick and easy as the Republican approach, especially since Biden—ever the institutionalist—is abiding by the general tradition of allowing senators to suggest judges for vacancies in their home states. Oh, and he's not cracking the whip if they don't meet the 45-day deadline for coming up with a name.
As a result of all of this, the number of vacancies on the federal courts is... sizable. Specifically, there are 119 current or announced vacancies, and Biden has made no nomination for 80 of them. Trump would never have allowed so many openings to linger, particularly if the possible loss of the Senate was looming. Heck, it's hard to think of any president in the last century who would have been OK with that state of affairs.
There are things Biden could do to speed things up. It's all good and well to solicit senators' input, but in the end, it's the president's prerogative to nominate judges. If senators can't take care of business in a timely manner (and, by the way, it's the California senators who have been the biggest problem, perhaps for obvious reasons), then Biden can and should say "too bad, maybe next time." He can also get on the phone with Senate Majority Leader Chuck Schumer (D-NY) and Senate Judiciary Committee Chair Dick Durbin (D-IL) and make sure that they schedule enough confirmation hearings between now and December. It does not make life easier that the currently injured Sen. Patrick Leahy (D-VT) and the potentially incapable Sen. Dianne Feinstein (D-CA) are on the Committee. It may be that Biden will have to push Schumer to bite the bullet and replace those two. After all, if a nominee can't get a Republican vote, then they need all 11 Democrats on the Committee to be present and voting "yea" for their nomination to advance to the whole Senate.
As we note above, Democrats are looking for Biden to do something on abortion. If he can't get behind some usage of executive branch power, well, judges will clearly play a big role in abortion policy in the near future and stacking the courts with pro-choice judges would give the president and his party a big talking point.
It would appear that Biden is getting serious about this issue, hence the deal with Senate Minority Leader Mitch McConnell (R-KY) to nominate and approve a strongly anti-choice judge to the federal bench in Kentucky. At the moment, the optics of that bit of horse trading are just awful. But if the President ends up trading one seat for 119, well, then the optics get a whole lot better for him and his party. (Z)
As you can see from today's headlines, there was a lot of legal news on Tuesday. Next up is the lawsuit the Department of Justice filed against the state of Arizona on Tuesday, challenging the state's new law that decrees that voters must provide proof of citizenship in order to cast ballots in federal elections.
Arizona already had a law requiring voters to provide proof of citizenship if they want to vote in state elections. That is legal. However, the Department of Justice argues that requiring proof of citizenship in federal elections is a violation of the National Voter Registration Act of 1993, which lays out the requirements for voting in federal elections (none of which is proof of citizenship). The Supreme Court concurred back in 2013, when Arizona attempted to adopt a nearly identical law. Clearly, in a preview of what jurisprudence is going to look like for the next several years (or decades), Arizona Republicans are taking another bite at the apple, thinking they may have better luck with a 6-3 conservative SCOTUS. There is no settled law anymore.
The main purpose of the law, of course, is to make it harder to vote for people who might not have easy access to a passport/birth certificate. Those folks skew poorer and browner than the population at large, and so are disproportionately Democratic. The law also empowers state prosecutors to go after people who submit voter registration paperwork without proof of citizenship. One can imagine what types of people are most likely to be pursued, and what types of people are most likely to be overlooked.
Note that this will not be germane to this year's elections, as the new law is not set to take effect until January of next year. But 2024's elections? Most certainly. And if Arizona triumphs in court this time, then 20 or so red states will pass copycat laws so fast it will make your head spin. (Z)
The 1/6 Committee isn't even sitting this week, at least not in public, but it's still making some news. From the day that the last, "surprise" hearing was announced, we (and others) guessed that the reason for the last-minute scheduling was concern over pressure being exerted on the witness. Since then, it's become clear that guess was spot on. Committee Chair Bennie Thompson (D-MS) and Vice Chair Liz Cheney (R-WY) indirectly alluded to this during the actual hearing, and it's subsequently been made clear that they were definitely referring to the day's star, Cassidy Hutchinson. One person in TrumpWorld told her to be "a team player," and the other pressured her to "do the right thing." And afterward, of course, Hutchinson was savaged by several people in Trump's orbit, including Trump himself.
What we are describing here is witness intimidation and it is, of course, a federal crime. Specifically, 18 U.S. Code 1512 decrees that: "Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to influence, delay, or prevent the testimony of any person in an official proceeding... shall be fined under this title or imprisoned not more than 20 years, or both." And so, the former president and several of his associates have just opened up another line of inquiry for prosecutors to potentially pursue. Actually, they probably opened it up months ago, but the treatment of Hutchinson has made it nearly impossible to overlook. Presumably, she will be willing to affirm that she not only felt enormous pressure, but that her appearance was specifically scheduled to try to escape it. We imagine that a jury would find a 26-year-old woman who was just trying to do the right thing to be a very credible witness. We certainly did. (Z)
And now, our last legal item of the day. When it comes to Donald Trump and those in his orbit, it seems that the investigation of financial crimes in New York has foundered. Is that temporary or permanent? Who knows? Is it because of disagreements between Manhattan DA Alvin Bragg and New York AG Letitia James, or is it because the medium-sized fish (e.g., Allen Weisselberg) aren't cooperating? Again, who knows? And there are even more questions about what the DoJ is up to. They're clearing up to something, but at the moment only AG Merrick Garland and his inside circle know what.
On the other hand, Fulton County DA Fani Willis may be pursuing the most slam-dunk of the cases against Trump, et al. And, not coincidentally, she appears to be closer to the finish line. That means that much of what she does requires the involvement of a judge and a grand jury, and is part of the public record. And so, everyone now knows that Willis has subpoenaed Rudy Giuliani, Sen. Lindsey Graham (R-SC), John Eastman and several other members of Team Trump for a chat. In fact, she's now subpoenaed every single lawyer employed by the Trump 2020 campaign.
One can only imagine what these folks are going to say when they get put under the microscope. They can plead the Fifth Amendment, in some cases, and can assert attorney-client privilege in others. But what they did is already well-known and is (largely) caught on tape. Possibly the most dangerous witness, if you're Donald Trump, is Graham. The Senator is a weasel, and a weasel who cares only about Lindsey Graham. He could very well flip on The Donald to save his own skin.
In any event, the bottom line is that Willis is laser-focused here, and her investigation has now publicly reached deep into Trump's inner circle. If anyone is likely to pop him before the 2024 election, it's her. (Z)
We often get e-mails, some of which we've run, from readers who are burned out on American politics. After all, it's turned into an unusually nasty business these days, thanks to social media, and certain loudmouth politicians, and a host of issues that seem to be nearly intractable.
If you're among those who feel this way, it turns out you're not alone. Quite a few politicians agree with you, though they usually don't admit it until shortly before they exit the world of politics. That is what makes the remarks from Philadelphia mayor Jim Kenney (D) so unusual. Responding to the mass shooting in Highland Park, Kenney said that the Second Amendment and the Supreme Court have made all of America into Dodge City. He continued:
There's not an event, or a day, where I don't lay on my back, and look at the ceiling, and worry about stuff. So everything we have in the city over the last seven years, I worry about. I don't enjoy Fourth of July, I don't enjoy the Democratic National Convention. I didn't enjoy the NFL Draft. I'm waiting for something bad to happen all the time. I'll be happy when I'm not here, when I'm not mayor, and I can enjoy some stuff.
One of the reporters speaking to Kenney asked him to confirm that he really meant that, and the mayor replied "Yeah, as a matter of fact." He's term-limited, so the expiration date for his political career is already known, but it's not until January 2024.
If he's not enjoying himself anymore, well, Kenney is far from the first politician to remain on the job out of a sense of duty. However, Pennsylvania U.S. Senate candidate Mehmet Oz (R), who is searching for any and all opportunities to make some headlines, decided to tear into Kenney, demanding that the Mayor resign immediately, and free Philadelphia of his "radical far-left policies."
Kenney has already apologized, issuing a statement explaining that he was venting during a moment of frustration and adding "Let me be clear, I'm incredibly grateful to be mayor of this great city and for the people who elected me to lead." Our guess is that voters in the City of Brotherly Love will find his honesty refreshing and will appreciate that he let his guard down for a moment and showed that even the best of us have a bad day.
Meanwhile, the contrast to Oz, from where we sit, is striking. Whereas everything Kenney said comes off as genuine, Oz's words seem as phony as the day is long. Does anyone actually believe that Oz is upset about radical far-left policies in Philadelphia, or anywhere else? He is just making his best guess at what his voters want to hear. And his instincts aren't very good, which is why his attempts to play populist come off as forced. We find it hard to believe that Pennsylvanians are going to buy what he's selling, especially since he's not only a phony now, he's been a phony for years and years. It's also Oz's bad luck to be matched up against Lt. Gov. John Fetterman (D), whose entire brand is "real" and "authentic." (Z)
It is possible that we are simultaneously watching a failed presidency (see above) and a failed British premiership unfold at exactly the same time. The U.K.'s Boris Johnson has been out of the frying pan and into the fire for quite some time, but it seems that every week, the fire gets a little hotter. That was certainly true this past week.
The current round of difficulty began with now-former deputy chief whip Chris Pincher, who was given that high-profile post despite a history of sexual misconduct. Last week, Pincher got soused at a party and groped two men without consent. He resigned the next day, and Johnson claimed he had no idea that Pincher had checkered past in this regard. As far as we can tell, there is nobody in the entire United Kingdom who actually believes Johnson.
The British public is not happy about this situation, which is just the latest example of less-than-upstanding behavior from the PM and those in his inner circle. Many members of his Cabinet are not happy, either. That includes Chancellor Rishi Sunak and Health Secretary Sajid Javid. Well, actually, we should say former Chancellor and former Health Secretary, as they both resigned yesterday, within minutes of each other. The two say their resignations were not coordinated, and there seems to be no reason for them to lie about that. Either way, that's 10 high-profile members of the administration who have quit since the Partygate scandal first began to unfold.
Of course, British politics, and the customs of the British system, aren't exactly our area of expertise. Fortunately, we have a report from reader L.B. in Cardiff, Wales:
We've been told over the last few months that Boris Johnson's downfall will be a death by 1,000 cuts. It's been easy to overstate how soon he's leaving, and I'd admit to being guilty of that—only because any other PM would've had the dignity to have resigned by now.
But I believe Tuesday's resignations have cut right across his political jugular. Especially that of Rishi Sunak; the Chancellor is traditionally the second most important post in the British government, and its holder is often seen as a potential successor to the sitting PM. Sunak, in particular, has for some time been seen as a rising star in the Tory party and as one of the most viable successors once Boris leaves.
To put that into a U.S. perspective, imagine Kamala Harris abruptly resigning after the midterms and returning to California, likely to launch a primary bid of her own. I fully believe that Boris will see a leadership bid very soon.
It's rather telling that after every scandal and setback, most of his cabinet have publicly defended him. But although most are staying on, the majority are rather quiet today. Among the few who have posted in his support are Nadine Dorries, a Culture Secretary whose sole idea of culture is to bugger off to Australia and appear on a reality TV contest at the taxpayer's expense, and Jacob Rees-Mogg and Michael Gove, possibly the only two bigger opportunists in British politics.
No, I think Boris' time has come and I really hope I won't be proven wrong this time.
Also, on a somewhat related note, we are still planning to run brief overviews of the court systems in various nations, particularly in regards to the question of whether they have the same power to strike down laws as does the U.S. Supreme Court. We've heard from readers in the U.K., the Netherlands, Germany, Finland, New Zealand, and... Canada. If readers in other countries would care to weigh in, we'd be happy to hear from you. Note, in particular, that we don't have any Asian, African, or Latin American nations as yet. Nor France (a.k.a. Canada East). (Z)
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---The Votemaster and Zenger
Jul05 Biden Announces First Presidential Medal of Freedom Recipients
Jul05 Today in Mediocre Political Analysis
Jul05 A Little Good News for the Democrats
Jul05 A Little More Good News for the Democrats
Jul04 How Will Dobbs Affect the Midterms?
Jul04 New York State Legislature Approves Constitutional Amendment Protecting Abortion
Jul04 Cheney: We Might Make Criminal Referrals
Jul04 Will Trump Announce a 2024 Run Soon?
Jul04 Newsom Is Campaigning in... Florida
Jul04 Poll: Majority Don't Want Biden to Run in 2024
Jul04 Biden and McConnell Make a Deal and Democrats Scream
Jul04 The 11 Types of Trump Enablers
Jul04 Will He or Won't He?
Jul04 Red Mirage Disappears in Los Angeles
Jul03 Sunday Mailbag
Jul02 Saturday Q&A
Jul01 Supreme Court Gets Out the Sledgehammers Again...
Jul01 ...And They're Teeing Them Up for Next Term
Jul01 Biden Calls for Abortion Carve-Out, Manchin and Sinema Say "Nope!"
Jul01 Biden to Try a Little Saudi Soft Shoe?
Jul01 Move over, Hillary v. Bernie; It's Time for Don vs. Ron
Jul01 This Week in Schadenfreude
Jun30 The Next Battle in the Abortion Wars Is over Mifepristone and Misoprostol
Jun30 Californians Will Vote on Abortion in November
Jun30 Democrats Are Spending Millions to Protect Sens. Murray and Bennet
Jun30 Giuliani's Biggest Legal Exposure May Be in Georgia
Jun30 Meadows and Giuliani Deny Asking for Pardons
Jun30 Justice Breyer Is Hanging Up His Robe Today
Jun30 John Wood Enters the Missouri Senate Race
Jun30 Which States Are the Most Independent?
Jun29 The 1/6 Committee Hearings, Day 6: Baby, You Can't Drive My Car
Jun29 About Those Seized Phones...
Jun29 By the Way, There Were Some Elections Yesterday
Jun29 Supreme Court Restores Louisiana Map
Jun29 Finland and Sweden, Come on Down
Jun28 Surprise Hearing for the 1/6 Committee
Jun28 Johnson Keeps Flopping Around
Jun28 Is Eastman a Criminal?
Jun28 SCOTUS Did It Again
Jun28 What a Bill Protecting Abortion Might Look Like
Jun28 Paging Joe Biden, Part I: Crickets
Jun28 Paging Joe Biden, Part II: Howard Stern for President
Jun27 How Will Dobbs Change America
Jun27 House Republicans in Swing Districts Are Worried
Jun27 Can Biden Do Anything about Roe?
Jun27 Blue City D.A.s in Red States Won't Prosecute Abortion Providers
Jun27 Noem Plans on Banning Telehealth Abortions
Jun27 States Can Sometimes Undermine the Supreme Court with Their Own Laws
Jun27 Elections in Five States Tomorrow