President Donald Trump bashed Sen. John McCain's widow for endorsing his rival Joe Biden, and his attack flopped.
Cindy McCain appeared on various TV news programs to announce that she'll endorse the president's Democratic challenger, and Trump insisted he barely knew the Republican senator's widow.
Other Twitter users let him have it.
In the power grab to fill the Supreme Court seat announced the same evening as the death of Justice Ruth Bader Ginsburg, Mitch McConnell didn’t do anything new. The GOP has a long history of playing hardball power politics.
In the late 19th century, Republicans added four states (Nevada, Colorado, North Dakota, and South Dakota) purely to gain eight new Republican senators, a trick Democrats could duplicate today by bringing statehood to Washington, D.C., and Puerto Rico (and maybe even Guam).
And in 1877, Republicans installed their presidential candidate, Rutherford B. Hayes, into the White House after he had lost both the popular vote and the Electoral College vote to Democrat Samuel Tilden, a case Trump may have been referring to in a press conference on September 16, saying, “at a certain point, it goes to Congress.” (This is the 12th Amendment nightmare I wrote about in March and Greg Palast has recently pursued.)
Republicans have also reduced the size of the Supreme Court specifically to deny a Democratic president a nominee before. (And, of course, there’s the sordid tale of what they did to Merrick Garland.) Democrats can easily change the composition of the court with a simple majority if they control the House and Senate after the election and choose to end the slavery-era filibuster rule.
The closest any Democrat has ever come to this sort of thing was in 1937 when President Franklin D. Roosevelt threatened to “pack” the court as Republicans had done 71 years earlier. (The threat and widespread public opinion in its favor worked, forcing the court to change its position on the New Deal, so the issue never came to a vote in Congress.)
Pushing the boundaries even further, over the course of now-Chief Justice John Roberts’ career working for President Ronald Reagan, George H.W. Bush and George W. Bush, he proposed a nuclear option that Republican lawmakers could use to legislatively overturn Brown v. Board and Roe v. Wade whether the Supreme Court liked it or not. Roberts’ plan was never implemented, but it’s still a long-shot option.
McConnell knows the first lesson of power politics: when representing only a minority, you must ruthlessly grab every bit of power you can, every time you can.
Republicans in the U.S. Senate represent about 15 million fewer Americans than do Democrats. The last Republican president initially elected with a majority vote from the American people was George H.W. Bush, 32 years ago in 1988; George W. Bush lost by about a half-million votes, and Trump lost by almost 3 million. In the U.S. House in 2018, 9 million more Americans voted for a Democrat than a Republican, a margin (8.6 percent) far larger than their actual governing majority.
Nonetheless, Republicans tenaciously hang onto power and do whatever it takes to both hold and increase that power at every opportunity.
Democrats must learn from this history and consider all of these options if they win the White House and the Senate, and hold the House this November. Being elected with solid majorities will enhance their credibility when they seize and wield that power, so it’s doubly important now to strike when the opportunity arises.
Here’s a deeper dive into the background, largely drawn from my books The Hidden History of the Supreme Court and the Betrayal of America and The Hidden History of the War on Voting.
Packing the Court in 1801
Thomas Jefferson beat John Adams in the election of 1800, and so, during the lame-duck session of 1801, Adams’ Federalists (the conservative party at that time) passed the Judiciary Act of 1801 to cut the size of the Supreme Court from six members to five, purely to deny Jefferson an opportunity to make an appointment. (Jefferson’s Democratic-Republicans—today’s Democratic Party—increased the number of members of the court to seven in 1802.)
The law also created 16 new federal judgeships, which Adams sought to quickly fill before Jefferson took office in March; that created a mess that led to the Marbury v. Madison decision, which authorized the court to strike down laws passed by Congress.
Packing the Court in 1866/1869
In 1866, Republicans in the House and Senate passed a law to reduce the number of justices on the Supreme Court from 10 to 7 to deny Democratic President Andrew Johnson an opportunity to fill a seat opened up with the 1865 death of Associate Justice John Catron. Johnson was furious, but there was nothing he could do.
Three years later, with Johnson out of the White House and Republican President Ulysses Grant safely in charge, they passed the Judiciary Act of 1869 that raised the number of justices up to nine, where it has stood till today.
Packing the Court in 1937
During FDR’s presidency, four of the Supreme Court’s justices, Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter, were collectively known as the Four Horsemen. They were invariably joined by one of the other justices, particularly Justice Owen Roberts, to strike down New Deal legislation that attempted to address unemployment and poverty, no matter how popular it was.
For the preceding decades during the Lochner era, the court had struck down dozens of state laws protecting workers, including women and children.
In 1935, the Supreme Court ruled that both the Agricultural Adjustment Act and the National Industrial Recovery Act were unconstitutional, gutting Roosevelt’s New Deal legislation.
The Agricultural Adjustment Act had passed in 1933 with 76 percent of the House of Representatives voting for it. The bill passed the Senate, also with 76 percent of the Senate voting for it.
Historian William Leuchtenburg wrote for Smithsonian magazine that after the Agricultural Adjustment Act was struck down, “Many farmers were incensed. On the night following [Justice Owen] Roberts’ opinion, a passerby in Ames, Iowa, discovered life-size effigies of the six majority opinion justices hanged by the side of a road.”
The National Industrial Recovery Act had likewise passed with 71 percent of the House voting for it and 81 percent of senators voting for it.
When the Supreme Court used its power of judicial review to overturn these laws, it wasn’t viewed just as an assault on FDR’s New Deal. It was, in the opinion of many Americans (and FDR himself), an assault on the very basis of our democratic republic.
Then, shortly before Roosevelt was reelected in 1936, the court struck down a New York state law that established a minimum wage for women and children in Morehead v. New York ex rel. Tipaldo.
The pendulum of popular opinion swung hard against the court almost overnight. One Republican newspaper in New York declared its opposition to the ruling: “The law that would jail any laundryman for having an underfed horse should jail him for having an underfed girl employee.”
And as historian David B. Woolner, author of The Last 100 Days: FDR at War and at Peace, noted, “Over… 13 months, the court struck down more pieces of legislation than at any other time in U.S. history.”
In 1937, the National Labor Relations Act and the Social Security Act (both passed in 1935) were on their way to the court. Considering how the Four Horsemen had ruled during FDR’s first term, Roosevelt knew that he needed to do something or risk losing both pieces of legislation.
With the New Deal on the line, Roosevelt went on the attack. On February 5, 1937, just months after his landslide reelection, he announced his plan. He asked Congress for the authority to appoint one justice for each justice over 70 who would not retire.
In 1937, the average life expectancy for men in the United States was only 58 years old. The average age of the Supreme Court justices at the time was 71 years old, and six of the justices were age 70 or older. A book mocking the court, called The Nine Old Men, “was rapidly moving up the bestseller lists,” as Leuchtenburg wrote.
FDR directly called into question the “capacity of the judges themselves” to dispose of the growing number of cases facing federal courts. The United States’ population had increased nearly 70 percent between 1900 and 1936, and the number of cases facing federal court dockets had exploded. Citizens were waiting longer and longer to go in front of older and older judges.
Roosevelt’s plan would have immediately given him six appointments to the Supreme Court and up to 44 appointments for federal lower courts. Roosevelt argued that “[a] constant and systematic addition of younger blood will vitalize the courts.”
On March 9, 1937, Roosevelt told the nation that the court was ruling not just against himself and Congress, but against the will of the American people.
“The Courts,” Roosevelt told the nation, “have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions.”
Roosevelt’s critics were aghast at his plans. They claimed he was trying the “pack the court” with justices who would simply be his yes men.
Reacting to his critics, Roosevelt cut to the heart of the matter:
“[I]f by that phrase the charge is made… that I will appoint Justices who will not undertake to override the judgment of the Congress on legislative policy, that I will appoint Justices who will act as Justices and not as legislators—if the appointment of such Justices can be called ‘packing the Courts,’ then I say that I and with me the vast majority of the American people favor doing just that thing—now.”
Congress never voted on the plan. It’s unclear whether it would have succeeded, or if a more moderate plan that would have given him only two or three justices might have passed more easily.
Instead, on March 29, 1937, a Washington state minimum wage law came before the Supreme Court in West Coast Hotel Co. v. Parrish. The law in question was nearly identical to the New York state law that had come before the court a year earlier when it had outlawed minimum wage laws as being unconstitutional.
But this time, Justice Owen Roberts abandoned the Four Horsemen to uphold Washington’s minimum wage in a 5-4 decision. In a further series of 5-4 decisions two weeks later, the court upheld the National Labor Relations Act as constitutional. The nation was astonished.
Labor Secretary Frances Perkins was close friends with Justice Roberts’ wife, Elizabeth. When the decisions came down, according to Kirstin Downey’s biography of Perkins, “she rushed that afternoon to Roberts’ home” and “threw her arms around the man and hugged him.”
“Owen, I am so proud of you,” Perkins told the Supreme Court justice. “A man of your standing and intelligence who is not afraid to change his mind!”
Downey wrote of how Roberts was embarrassed by the affection but also very pleased. “Really, do you think so?” he replied to Perkins.
Less than two months later, the court declared that Social Security was constitutional.
The New Deal had been saved from execution on the Supreme Court’s bench. Social Security had been salvaged, and the National Labor Relations Act gave labor and unions a lifeline after generations of fighting to stay afloat.
Roberts’ about-face in West Coast Hotel case was referred to at the time as “the switch in time that saved nine,” rendering FDR’s proposal unnecessary.
Packing the Senate
In 1864, Abraham Lincoln was looking at the potential future composition of the U.S. Supreme Court after the war, concerned that Democrats might end up controlling the judicial body.
Back then, it took roughly 125,000 citizens in a territory to qualify it for statehood, and the Nevada Territory only had 40,000 residents, but almost all were GOP-aligned. So, ignoring the 125,000-person requirement (it was more a matter of policy than law), Lincoln proposed statehood for Nevada and Congress approved it, adding two new GOP senators.
After the Civil War, as Southern (and Democratic-controlled) states were reintegrating into the Union, Republican President Ulysses Grant was worried that Democrats might end up controlling the Senate, and so in 1876 Grant and Republicans in Congress added Colorado—with fewer than 40,000 residents—as a new state, gaining two more GOP senators.
Democrats were rising in power again when Democrat Grover Cleveland won the White House in 1884 and won the popular vote (but lost the Electoral College) in 1888. Popular-vote loser Republican President Benjamin Harrison, in 1889, successfully proposed the Dakota Territory—which then had 134,000 residents—be split into two territories, North Dakota (pop. 36,000) and South Dakota (pop. 98,000), and each of them become states with two senators each.
Thus, in 25 years, the GOP added eight senators, largely cementing their control of the Senate until the Great Depression; from Lincoln’s inauguration in 1861 until FDR’s inauguration in 1933, Democrats controlled the Senate for only 10 years.
Roberts’ Nuclear Option to Get Around the Supreme Court
The year 1981 was a big one for court-stripping—or, as it’s sometimes called, jurisdiction-stripping. No fewer than 30 pieces of legislation were introduced into the U.S. House of Representatives by Republican congressmen that included court-stripping provisions. It was a huge topic of discussion and legal activity among Republicans.
And a young lawyer working in Ronald Reagan’s Justice Department, an up-and-comer named John Roberts, was hot on the trail.
Court-stripping is based on the idea that Congress has the power, under the Constitution, to pass laws that include provisions that specifically prevent (or strip the jurisdiction of) the Supreme Court (or any other federal court, if stipulated) from ruling on that particular law or issue’s constitutionality.
It’s based on Article III, Section 2, of the Constitution, which says, “[T]he [S]upreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
In 1954, the Supreme Court ruled, in Brown v. Board, that states had to racially integrate their schools. Southern states promised “massive resistance” in defiance, and entire school districts were shut down; many Southern states opened private all-white “segregation academies” such as the one Mississippi Senator Cindy Hyde-Smith famously went to and sent her daughter to.
Brown provoked a mini-industry among right-wing white racists: Fred Koch’s beloved John Birch Society was putting up “Impeach Earl Warren” billboards across the nation and publishing articles and pamphlets tying civil rights activists to communism; hundreds of all-white private schools opened; and conservative scholars of the Supreme Court and the Constitution searched through old books and debates from the founding era to that day looking for rationales to overturn the decision.
Other than years of disruption to public education and a redoubled effort by conservatives to keep public schools funded with local property taxes (so that poor and/or Black schools would continue to turn out poorly educated students), not a great deal came of the opposition to Brown v. Board.
But defying the Court became a much bigger business in 1973, when the court in Roe v. Wade ruled that women have the right, at least in the first trimester of a pregnancy, to choose to have an abortion pretty much anywhere in the country, for any reason.
Reagan kicked off his 1980 presidential campaign with a speech about education and states’ rights to a predominantly white crowd near Philadelphia, Mississippi, where three civil rights activists had been murdered in 1964. Willing to say and do whatever it took to take the White House, Reagan was the perfect vessel for a white supremacy message opposing forced integration, welfare for Black people, and abortion for white women.
Reagan’s administration brought together a constellation of conservative white men to change the face of America. Ted Olson, who later argued Bush v. Gore before the U.S. Supreme Court, led the Justice Department’s Office of Legal Counsel. As an assistant attorney general, Olson worked with counselor to the attorney general Ken Starr (appointed to that job in 1981), who was later (1989-1993) George H.W. Bush’s solicitor general. Other new faces Reagan hired included Samuel Alito and John Roberts.
Starr tasked Roberts, a staunchly antiabortion Catholic, with reviewing the entire history of the U.S. Supreme Court for cases that suggested a legislative or administrative way to overturn Roe v. Wade and Brown v. Board.
Roberts wrote an extraordinary 27-page document that’s largely unknown, in the form of a memo on the letterhead of the Office of the Attorney General, to Ken Starr, signed by Roberts as special assistant to the attorney general. It is titled, “Proposals to Divest the Supreme Court of Appellate Jurisdiction: An Analysis in Light of Recent Developments.”
Roberts wrote that he had found “over twenty bills [pending in Congress] which would divest the Supreme Court (and, in most instances, lower federal courts as well) of jurisdiction to hear certain types of controversies, ranging from school prayer and desegregation cases to abortion cases.”
What Roberts and his researchers had discovered was substantial.
Court-stripping is based on the exceptions clause of Article III, Section 2, of the Constitution, which stipulates that the courts exist “with such Exceptions, and under such Regulations as the Congress shall make.”
Roberts noted in his memo that “[t]he exceptions clause by its terms contains no limit… This clear and unequivocal language is the strongest argument in favor of congressional power and the inevitable stumbling block for those would read the clause in a more restricted fashion.”
Roberts was looking at the nuclear option. If he could build a strong case for Congress passing a law against abortion or desegregation, and persuade Congress to use the exceptions clause to render the courts moot, then this could be the magic bullet to restore segregation and recriminalize abortion.
Roberts concluded with a 1968 comment from Sam Ervin of North Carolina, one of the Senate’s most outspoken opponents of racial integration and abortion.
He wrote, “As Senator Ervin noted during hearings on the exceptions clause, ‘I don’t believe that the Founding Fathers could have found any simpler words or plainer words in the English language to say what they said, which was that the appellate jurisdiction of the Supreme Court is dependent entirely upon the will of Congress.’”
Roberts agreed: “[W]e are not considering a constitutional clause that is by its nature indeterminate and incapable of precise or fixed meaning, such as the due process clause or the prohibition on unreasonable searches and seizures.”
This was clearly the original intent, Roberts argued, because “the exceptions clause ‘was not debated’ by the Committee of Detail which drafted it or the whole Convention.”
Citing Federalist, no. 81, Roberts wrote, “Hamilton noted that the clause would enable ‘the government to modify [appellate jurisdiction] in such a manner as will best answer the ends of public justice and security,’ and that appellate jurisdiction was ‘subject to any exceptions and regulations which may be thought advisable.’”
Section III of Roberts’ screed on court-stripping dives deep into Supreme Court decisions to find rulings explicitly saying that Congress can regulate the Supreme Court and block the court from ruling on particular issues.
Beginning with the 1869 decision Ex parte McCardle, Roberts wrote, “A unanimous Court upheld the power of Congress to divest the Supreme Court of jurisdiction. The Court clearly based its decision on Congress’ power under the exceptions clause. Chief Justice Chase began the opinion by recognizing that the appellate jurisdiction of the Court ‘is conferred “with such exceptions and under such regulations as Congress shall make.”’”
Quoting Chase again, Roberts added his own emphasis: “We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this Court is given by express words [underline Roberts’].”
He continued his historical exposé of court-stripping with another 1869 decision, Ex parte Yerger, and then United States v. Klein (1872), Wiscart v. Dauchy (1796), Durousseau v. United States (1810), Daniels v. Railroad (1865), and The Francis Wright (1881).
In The Francis Wright, Roberts found that Chief Justice Morrison R. Waite (whose court oversaw the infamous 1886 “corporate personhood” Santa Clara County v. Southern Pacific Railroad case) wrote for a unanimous court, quoting him as follows: “Not only may whole classes of cases be kept out of the jurisdiction altogether, but particular classes of questions may be subjected to re-examination and review, while others are not.”
Each case strengthened the idea that Congress could simply pass a law, without even needing a supermajority, that barred the Supreme Court from ruling on a set of issues—like Reagan’s hot-button issues of school desegregation and abortion.
Moving toward late-19th-century decisions, Roberts quoted the court in Colorado Central Consolidated Mining Co. v. Turck (1893): “[I]t has been held in an uninterrupted series of decisions that this Court exercises appellate jurisdiction only in accordance with the acts of Congress upon the subject.”
Roberts, in his own voice, added, “Again, it bears emphasis that the basis for this theory is the implicit exercise by Congress of its exceptions power when it makes a limited grant of jurisdiction.”
Still building his case, Roberts jumped into 20th-century rulings, starting with National Mutual Insurance Co. v. Tidewater Transfer Co. (1948). Writing for the majority, Justice Felix Frankfurter noted in the decision, “Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice.”
About the 1944 Yakus v. United States case, Roberts wrote, “Justice Rutledge noted… that ‘Congress has plenary power to confer or withhold appellate jurisdiction.’”
Regarding Flast v. Cohen (1968), Roberts quoted from Justice William O. Douglas, who wrote, “[A]s respects our appellate jurisdiction, Congress may largely fashion it as Congress desires by reason of the express provisions of Section 2, Article III. See Ex parte McCardle.”
In Section IV of his memo, Roberts again covered the span from the framing of the Constitution to the time of his writing the memo, quoting another dozen or so cases that referenced, less directly, the power of Congress to exempt the Court from certain issues or decisions.
Roberts also noted that the original Judiciary Act of 1789 (which created the federal court system) also refers to Congress’ power of exception.
Time to Play Hardball
Both demographics and popular political opinion are moving against the Republican Party, and Republican politicians know it. Democrats should use this moment—if we can succeed in fighting back the GOP fascist tide—to use historical precedent to reconfigure our government so it represents the will of a majority of Americans.
No more Mx. Nice Guy.
Thom Hartmann is a talk-show host and the author of The Hidden History of American Oligarchy and more than 30 other books in print. His most recent project is a science podcast called The Science Revolution. He is a writing fellow at the Independent Media Institute.
This article was produced by Economy for All, a project of the Independent Media Institute.
September has featured one scandal after another stemming from Donald Trump's belief that the best way to handle the coronavirus pandemic is to let a bunch of people get sick and die, and then deny that it's happening. First, journalist Bob Woodward started to releasing recordings in which Trump said he "wanted to always play it down" and admitted he had deliberately lied to the public about how serious this virus really is. Then, in a town hall for ABC News, Trump confessed that his real strategy was to let the virus run loose to create herd immunity — or rather "herd mentality" which would be "herd developed," to quote the president accurately — even though that would literally kill millions of Americans. Then the New York Times published a new exposé revealing that Trump officials had overruled medical researchers at the Centers for Disease Control and Prevention, forcing the agency to publish misleading and dangerous information designed to discourage people who have been exposed to the virus from being tested.
This article was originally published at Salon
None of this, it's critical to underline, is good for Trump's re-election campaign. Polling shows that only 35% of Americans approve of Trump's handling of the pandemic, which is the same percentage of Americans who would probably say they'd still love Trump if he nuked their hometowns. Polls also show that because of Trump's malice and incompetence, 69% of Americans have little to no confidence in the safety or efficacy of a vaccine that he may announce. Only 9% of Americans say they have a great deal of confidence in Trump. Even his own supporters know he's a liar and a fraud: They've entrusted him with the nuclear codes, but don't trust him with a vaccine.
Yet despite all this, Trump keeps on keeping on with his "let them die and lie about it" strategy.
At a rally in Ohio Monday night, Trump leaned heavily into the "play it down" strategy, going on a rant about how young people "have a strong immune system" and the virus primarily "affects elderly people, elderly people with heart problems and other problems."
"But it affects virtually nobody. It's an amazing thing," he continued, even though the "nobodies" he's talking about — older people, people with health problems — are more likely to be Republican voters than Democrats, who skew younger. Trump himself is 74 years old, though he has probably deluded himself with all his "good genes" talk into believing he's not in the high-risk category.
Trump made these "nobody" comments as the death toll from the virus approached 200,000 Americans — a benchmark we passed on Tuesday morning — and the number of people infected surpassed 6.8 million. But the circle of "nobodies" is much larger than that, since basically everyone in the country is affected by this pandemic. Either someone they love has gotten the virus or lockdowns and the severe economic downturn have negatively impacted their lives.
Trump's efforts to weaponize the CDC haven't slowed down either. Last Friday, a new guidance slipped onto the website that emphasized that coronavirus transmission is airborne and that indoor, crowded spaces such as fitness classes and choir practice are especially dangerous. On Monday, however, the guidance was removed and the CDC said it had been "posted in error."
That is, of course, absolutely ridiculous. As Ben Guarino, Chris Mooney and Tim Elfrink at the Washington Post report, "Evidence that the virus floats in the air has mounted for months, with an increasingly loud chorus of aerosol biologists pointing to superspreading events in choirs, buses, bars and other poorly ventilated spaces."
It's possible, of course, that this is all a matter of bureaucratic mismanagement and that any moment now the CDC will post a guidance that reflects the scientific evidence that indoor airborne transmission is a serious threat. But it's reasonable to be suspicious, especially as the guidance that was yanked down conflicts with Trump's repeated insistence on returning Americans to a lifestyle that involves a great deal of close contact in indoor spaces such as offices, restaurants, churches, schools and — perhaps most importantly, in Trump's eyes — political rallies.
Considering that Trump's pandemic mismanagement has destroyed any hope of a return to normal life anytime soon, all eyes have turned toward the possibility of a vaccine as the thing that will save us from this pandemic. While there's reason to hope that a safe and effective vaccine will be ready for distribution in the coming months, there's also reason to be worried that Trump is going to screw the entire thing up.
Trump just keeps lying and lying about a vaccine, insisting that one is not only coming on a much quicker timeline than actual health experts believe, but even setting concrete deadlines, suggesting (of course) that a vaccine may be available before Election Day.
It's tempting to shrug off such antics, but as with all things, Trump's relentless lying and meddling are only making a bad situation worse. The more this pathological liar talks about a miracle vaccine that's right around the corner, the more the public appears to be skeptical about it, on the sound grounds that it's bad news to trust a blowhard moron who posited that bleach injections might be a useful treatment for COVID-19.
People probably shouldn't be worried that Trump will try to force a dummy vaccine onto the market. He's way too lazy to pull that off. What's more likely is that he'll find some thin pretext to host some reality TV-style October-surprise announcement of a vaccine that doesn't actually exist yet, holding up an empty syringe and falsely claiming — as he has done for months — that the pandemic is finally over.
The real problem isn't so much a fake vaccine as the possibility that Trump will screw up the distribution of a real one, whenever such a thing exists. Past is predictor, after all, and in the past, meddling by Trump and his administration — especially his son-in-law, Jared Kushner — has actively blocked efforts by government officials or medical experts to control the pandemic. Kushner shut down strategies to distribute protective equipment to people in need, embracing instead a "market" strategy that drove up prices and increased shortages. Trump himself has waged a war against the widespread testing necessary to slow down viral spread.
Trump's instincts will always lead him to lie and cheat, and his distrust of experts makes it impossible for him to get out of the way and let competent people do their jobs. Witness how he took over the coronavirus task force briefings, interfering with the ability of public health officials to share valuable information so that he could indulge his fantasy of being the star of the show and the preeminent authority on every topic.
If Trump wins re-election (by fair means or foul), his compulsive need to interfere with everything and his paranoia about the "deep state" that's out to get him will surely affect vaccine distribution, just as he and Kushner messed with distribution networks for protective equipment and testing.
Also, the more Trump runs his mouth about a vaccine, the more people will distrust that a vaccine is trustworthy and safe, since everyone — including his own supporters — knows he will say anything if he thinks it benefits him. If people don't trust a vaccine, they won't get it, no matter how many experts vouch for its safety.
The grim reality is that it won't be enough to have a safe and effective vaccine. (Bearing in mind that we don't quite know what "effective" will mean: Will it be more like the measles vaccine, which protects most people for their entire lives, or like the flu vaccine, which offers partial protection for a single season?) To bring an end to the pandemic and a return to something like normal life, the vaccine must be distributed widely and efficiently, and most people need to trust it enough to take it. With Trump in charge, there's a good chance that all of that will go sideways. The only way to be certain that the coronavirus pandemic is brought to an end is for a real president to be in charge when a real vaccine is finally available.
Sen. Mitt Romney (R-UT) announced that he will vote to support President Donald Trump's Supreme Court nominee despite Americans already casting ballots to replace him. It's something that many found remarkable because Romney just voted earlier this year to remove Trump from office, but he now he believes it is appropriate for another judge to be fast-tracked through the senate.
While Romney does have a history of loving conservative judges, he doesn't have a good history with Trump as he's been one of few Republicans to hold Trump accountable for moral and ethical failings. However, like Senator Susan Collins (R-ME), Romney has refused to do anything about his "concerns."
It's one of many reasons he was shredded on Twitter after the announcement.
You can read the anger and frustration in the tweets below:
People in public life tend to fall into one of two broad categories – those who are motivated by principle, and those motivated by power.
Justice Ruth Bader Ginsburg, who died Friday night at the age of 87, exemplified the first.
When he nominated her in 1993, Bill Clinton called her “the Thurgood Marshall of gender-equality law,” comparing her advocacy and lower-court rulings in pursuit of equal rights for women with the work of the great jurist who advanced the cause of equal rights for Black people. Ginsburg persuaded the Supreme Court that the 14th Amendment’s guarantee of equal protection applied not only to racial discrimination but to sex discrimination as well.
For Ginsburg, principle was everything – not only equal rights, but also the integrity of democracy. Always concerned about the consequences of her actions for the system as a whole, she advised young people “to fight for the things you care about but do it in a way that will lead others to join you.”
Mitch McConnell, the Senate majority leader, exemplifies the second category. He couldn’t care less about principle. He is motivated entirely by the pursuit of power.
McConnell refused to allow the Senate to vote on President Barack Obama’s nominee to the Supreme Court, Merrick Garland, in March, 2016 – almost a year before the end of Obama’s term of office – on the dubious grounds that the “vacancy should not be filled until we have a new president.”
McConnell’s move was a pure power grab. No Senate leader had ever before asserted the right to block a vote on a president’s nominee to the Supreme Court.
McConnell’s “principle” of waiting for a new president disappeared Friday evening, after Ginsburg’s death was announced.
Just weeks before one of the most consequential presidential elections in American history, when absentee voting has already begun in many states (and will start in McConnell’s own state of Kentucky in 25 days), McConnell announced: “President Trump’s nominee will receive a vote on the floor of the United States Senate.”
This is, after all, the same Mitch McConnell who, soon after Trump was elected, ended the age-old requirement that Supreme Court nominees receive 60 votes to end debate and allow for a confirmation vote, and then, days later, pushed through Trump’s first nominee, Neil Gorsuch.
Ginsburg and McConnell represent the opposite poles of public service today. The distinction doesn’t depend on whether someone is a jurist or legislator – I’ve known many lawmakers who cared more about principle than power, such as the late congressman John Lewis. It depends on values.
Ginsburg refused to play power politics. As she passed her 80th birthday, near the start of Obama’s second term, she dismissed calls for her to retire in order to give Obama plenty of time to name her replacement, saying she planned to stay “as long as I can do the job full steam,” adding “There will be a president after this one, and I’m hopeful that that president will be a fine president.”
She hoped others would also live by principle, including McConnell and Trump. Just days before her death she said, “My most fervent wish is that I will not be replaced until a new president is installed.”
Her wish will not be honored.
If McConnell cannot muster the senate votes needed to confirm Trump’s nominee before the election, he’ll probably try to fill the vacancy in the lame-duck session after the election. He’s that shameless.
Not even with Joe Biden president and control over both the House and Senate can Democrats do anything about this – except by playing power politics themselves: expanding the size of the court or restructuring it so justices on any given case are drawn from a pool of appellate judges.
The deeper question is which will prevail in public life: McConnell’s power politics or Ginsburg’s dedication to principle?
The problem for America, as for many other democracies at this point in history, is this is not an even match. Those who fight for power will bend or break rules to give themselves every advantage. Those who fight for principle are at an inherent disadvantage because bending or breaking rules undermines the very ideals they seek to uphold.
Over time, the unbridled pursuit of power wears down democratic institutions, erodes public trust, and breeds the sort of cynicism that invites despotism.
The only bulwark is a public that holds power accountable – demanding stronger guardrails against its abuses and voting power-mongers out of office.
Ruth Bader Ginsburg often referred to Justice Louis Brandeis’s famous quote, that “the greatest menace to freedom is an inert people.” Indeed.
The too-soon death of Justice Ruth Bader Ginsberg has torn an opening in the fabric of the court that millions of socially Paleolithic conservatives have been waiting for: The now see the real potential for a 6-3 advantage.
Had around 77,000 votes in Michigan, Pennsylvania and Wisconsin gone the other way back in 2016, President Hillary Clinton would have secured five liberal seats on the high court (so far) and conceivably six, depending of course on control of the Senate. Sure, there are all kinds of "what ifs" in that scenario, but generally speaking, a Democratic president would have been in place to nominate as many as three new justices, and none of them would've been named Brett Kavanaugh or Neil Gorsuch.
Clinton was denied that opportunity for a variety of electoral reasons, among them the archaic turnkey known as the Electoral College, along with third-party votes in the three aforementioned swing states. Clinton's defeat meant the oldest sitting justice on the bench, who happened to be liberal, would be forced to wait at least another four years to retire — four years fighting an endless hellfire of illnesses and injuries. Ginsburg did everything she could do to endure, but her body, hobbled by pancreatic cancer among other infirmities, had other plans.
So now we're looking at the possibility — let's make that a near-certainty — that Donald Trump will nominate a third justice to the Supreme Court. Donald Trump, the tyrant who ordered federal police to fire upon peaceful protesters in Lafayette Park, not to mention at Ali Velshi, an NBC News reporter in Minneapolis, who was shot with a rubber bullet; the tyrant who has confessed to downplaying the deadliest pandemic in 100 years; the fascist tyrant who believes U.S. soldiers are "suckers" and "losers"; the tyrant who was impeached for trying to cheat in the election and who's currently trying to sabotage the Postal Service to cheat again; the tyrant who said, on tape no less, that he gets along better with other tyrants than with U.S. allies; and the tyrant who's actively maneuvering to kill the Affordable Care Act and, with it, numerous consumer protections and health insurance plans for 20 million Americans.
He gets three nominations now.
Turns out, elections matter. Voting matters.
The stakes for the 2020 election now involve whether Trump and Mitch McConnell will be able to successfully confirm a replacement for Ginsburg. If Trump loses and loses handily, it's unlikely he'll have the votes from his party in the Senate to confirm his nominee before the next Congress is sworn in on Jan. 3, 2021. If Trump wins, however, swing votes in the Republican caucus, like Lisa Murkowski of Alaska, Susan Collins of Maine and Mitt Romney of Utah could swing to Trump's nominee. It's also possible the congressional Democrats will engage in strategic obstructionism to run out the clock.
These are all possible avenues for snatching Ginsburg's seat from Trump's stubby fingers. But her seat isn't the only Supreme Court vacancy on the ballot this year.
Justice Stephen Breyer, one of three remaining liberals on the court, turned 82 last month. He's nearly five years older than Joe Biden and eight years older than Trump. So Breyer is to 2020 what Ginsburg was to 2016. (Ginsburg was 83 at the time of Trump's shock victor.)
So, not only does this election matter in terms of saving Ginsburg's seat — it may also mean saving Breyer's seat, too.
Overwhelmed yet? Just wait, there's more.
If the unthinkable happens and Trump manages to win a second term, while the balance in the Senate ends up being, let's say, 50-50, handing every contentious and divisive matter to Mike Pence for tiebreakers, the consequences for the Supreme Court will go from horrendous to apocalyptic.
It's reasonable, if admittedly morbid, to assume that Breyer may retire or die within the next four-plus years. If that happens, Trump would get his fourth SCOTUS nominee, transforming a 6-3 court (assuming Mitch McConnell can jam through Trump's nominee for Ginsburg's seat) to a blindingly lopsided 7-2 court.
Oh, and Clarence Thomas and Sam Alito, who are both in their 70s, might be persuaded to retire during a second Trump term, potentially locking up those seats for conservatives 30 years or more into the future.
A hypothetical court with seven right-wing justices could strike down everything from Roe v. Wade to Brown v. Board of Education. Obergefell v. Hodges, the decision that legalized same-sex marriage, might be the first to fall, given its comparative modernity. Following the elimination of these landmark decisions (and many others), fetal personhood laws could go into full effect in red states, penalizing abortions as capital crimes; same-sex marriages in red states, meanwhile, would be dissolved; and a return to pre-Civil Rights Act segregation would begin to spread from one red-state school district to another. At-risk Americans living in blue states might be shielded from some of this, at least for a while, until the inevitable: a 7-2 court might ultimately affirm a slate of draconian federal laws blasted through Congress (depending on which party controls the Senate), including federal personhood laws and bans on everything related to LGBTQ rights. Adding insult to injury, Trump would skate through his second term with a court that would stand ready to strike down any attempt to hold him accountable for his crimes.
Progressives who choose to vote for third party candidates this year need to be aware that not only will an ossified conservative court vaporize the ACA, returning our health insurance system to its abusive and horrendous pre-2010 status, but it would steamroll anything resembling Medicare for All. No version of the Green New Deal, by the way, would survive legal challenges either. And since we're talking about a relatively "young" Supreme Court, there would be no realistic chance of enacting similar initiatives for decades to come. As Abraham Lincoln once said, a compass that points us to true north doesn't take into consideration all the swamps and deserts to be avoided along the way.
For these reasons and more, it's not only important to vote, but it's important to vote for a straight Democratic ticket — from Biden and Kamala Harris right on down the line. When I see pundits and celebrities on television or social media urging people to vote, I can't help but think they're only getting it half right. You have to vote, sure. But if you're anywhere in the vicinity of normalcy and small-L liberalism, your vote has to be for Democrats. Votes for third parties are nothing more than votes against the only viable, relatively sane party in a binary political system. Not only do we have to vote against all Republicans to stop the hemorrhaging, we have to vote in overwhelming numbers, in order to give the winning candidates enough political capital to enact a roster of mandatory reforms to the system, such that nothing like this ever happens again.
This isn't a game. This isn't a time for contrarian protest votes. This is real life and we're on the verge of a total collapse should this election go sideways. Everything we cherish as reality-based, fact-based Americans is on the ballot this year. All of it. Civil rights, voting rights, body sovereignty, the freedom to protest against the president, the freedom to marry who we love, our health and well-being — it's all on the ballot this year. Choose wisely.
A Florida judge rumored to be on short list of nominees to fill the Supreme Court seat left vacant by Justice Ruth Bader Ginsburg's death is currently hearing a $100 million lawsuit from one of President Donald Trump's top campaign strategists.
This article first appeared in Salon.
Judge Barbara Lagoa was appointed to Florida's 11th Circuit Court of Appeals less than one year ago by Trump. She is one of two Trump appointees on a three-judge panel which will decide whether the effort by the president's senior campaign strategist Jason Miller to revive a $100 million defamation suit against Gizmodo may advance.
Miller has sued the media conglomerate over a 2018 article in its now-defunct subsidiary website Splinter reporting that he drugged a woman with an abortion pill without her knowledge after learning she was pregnant.
Splinter reported that the allegation came in a court filing from A.J. Delgado, a former Trump 2016 campaign aide. Delgado has been engaged in a bitter custody dispute since 2017 with Miller, a married man who fathered her child while they worked on the campaign. Delgado claimed in a court filing that the alleged smoothie incident involved another woman, whose identity she did not publicly reveal.
Miller filed a $100 million defamation suit against Gizmodo Media and Katherine Krueger, the reporter for Splinter. He denies the allegations.
A Miami-based federal district court judge tossed out the case a year ago, ruling that the report was a fair and accurate summary of a judicial proceeding — and therefore shielded from libel charges. Miller appealed that ruling, and the court heard opening arguments last month.
The appeal hangs on Miller's argument that the "fair report privilege" should not apply, because the filing cited by Splinter was been under seal at the time of publication. However, Gizmodo claims that the document was available for at least a three-day window before Miller's lawyers filed to seal it. Because the court did not automatically seal the document, Gizmodo says it had a fair claim for publication under New York law.
The two Trump-appointed judges on the panel — Lagoa and Andrew Brasher — "seemed friendlier to Miller's case," according to a Politico report on the initial hearing last month.
For a Supreme Court nominee, Lagoa's judicial experience would be thin by historical standards. Lagoa has about nine months of experience on the federal bench, and she previously served for less than one year on Florida's Supreme Court.
In addition to the Miller case, Lagoa is also currently ruling on a challenge to a Florida law requiring anyone with a serious criminal conviction to pay all fines and legal obligations before they can vote. Florida is a key swing state in the 2020 elections.
Democrats on the Senate Judiciary Committee recently wrote to Lagoa and Brasher, along with Trump appointee Robert Luck, asking them to recuse themselves from the case. The senators cited judicial ethics rules barring judges from ruling on cases if their impartiality can be "reasonably" questioned. Though Brasher recused himself, Lagoa and Luck have not.
Lagoa's potential conflicts of interest in that case may go beyond her connection to Trump. During her short stint on Florida's Supreme Court, the judge ruled to reverse a decision invalidating the felon voting law. She argues that the federal case is different from the state-level case, which some see as a gray area when it comes to recusal.
The Trump campaign views Florida as a must-win on its path to electoral victory Nov. 3.
Lagoa, a Cuban-American from Florida, was also featured on Trump's Sept. 10 list of potential nominees.
Financial affidavits from Miller's child support case, reviewed and first reported by Salon, showed the Trump adviser has consistently argued for years that he is broke despite simultaneously reporting incomes anywhere between $20,000 and $67,000 a month. His August affidavit showed a $35,000 monthly income starting in June, when he joined the Trump campaign. However, the campaign has not disclosed any payments to Miller or other top staff members.
Delgado has publicly claimed that Miller may be financially "desperate" to overturn the initial ruling on his $100 million lawsuit.
"It's Lagoa who decides it," she tweeted. "So she was placed on this list and now has to rule in Miller's favor."
Federal judge Amy Coney Barrett has been reported to be the front-runner to replace Ginsburg. Trump said Monday that he intends to announce a decision by "either Friday or Saturday."
The Trump campaign appears to still be hiding large-dollar payments to some of its top staff from federal regulators, including campaign manager Bill Stepien, chief strategist Jason Miller and former Fox News host turned chief fundraiser Kimberly Guilfoyle, campaign filings show.
This article first appeared in Salon.
The campaign's August report, which was filed Sunday with the Federal Election Commission, shows no payroll payments to a number of senior advisers, with gaps from July previously reported by Salon still open.
While the campaign reports salary payments to chief of staff Stephanie Alexander and senior adviser Katrina Pierson — at the rate of $20,000 a month each — it does not appear to issue similar reports for Guilfoyle; COO Jeff DeWit; or senior advisers Bob Paduchik, Bill Shine and Lara Trump, filings show.
Further, the Trump campaign has still not disclosed any payments to senior adviser Jason Miller or new campaign manager, Bill Stepien, who took over Brad Parscale's role in July, according to mandatory filings.
Parscale appears to have taken a $15,000 a month pay cut along with his demotion, or a drop from $47,747 to $32,747 from July to August, per federal records. However, that payment did not go straight to Parscale for official campaign work but rather to his firm Parscale Strategy for "strategy consulting."
That same firm has reportedly funneled salary payments to Guilfoyle and Lara Trump, the significant others of the president's eldest two sons. Those payments were said to be $15,000 a month, or the same amount cut from Parscale's take. (Guilfoyle's role floats in press reports from senior Trump campaign adviser to financial chair of Trump Victory, which is a joint fundraising arm of the Republican National Committee. It does not report salary payments to her, either.)
While the campaign did not report paying Stepien a salary, it did report a $300 payment to the new campaign manager on Aug. 18 for "strategy consulting." Though the campaign does not appear to directly pay Miller, Salon reviewed court documents showing that the top strategist made as much as $35,000 a month from his campaign work. That would effectually be a $420,000 salary, or more than the presidency pays.
However, the Trump campaign does disclose payments to Jamestown Associates, a media company founded in New Jersey which specializes in campaign publicity. Miller was once a top Jamestown executive, and Stepien also has ties to the firm through former Gov. Chris Christie, R-N.J. (Christie fired Stepien as his campaign manager in the wake of the "Bridgegate" scandal before going on to praise his elevation to the top slot in Trump's operation this year.)
FEC filings show that the campaign has made several payments to Jamestown this year, ranging from approximately $7,500 to $45,500 through June. In July, those payments increased significantly, including a $78,394 payment on July 13 and a $133,800 payment on July 28.
Miller joined the campaign in June, and Stepien was promoted by the campaign on July 15. The campaign reports that the disbursements to Jamestown Associates were for "video production services."
Jamestown Associates made several campaign ads ahead of the Republican National Convention last month, and the campaign's August filings show five payments over the course of the month totaling about $210,000. One of those payments — for $28,180.73 — also shows up in the same amount as a campaign debt still owed at the end of the month.
"A debt and a payment to resolve that debt shouldn't appear on the same report," campaign finance expert Brett Kappel told Salon. "An unpaid invoice doesn't become a reportable debt until it has gone unpaid for 60 days."
"It may be an accounting error. They paid an invoice that was more than 60 days old," Kappel continued. "If so, they should have just reported the payment and never reported it as a debt. It could also be a coincidence that they received two invoices for the same amount, but that seems unlikely given the services they provide. I have seen it happen, however, when a vendor provides the same service repeatedly for a fixed fee."
Jamestown Associates has only billed the campaign for $28,180.73 on one occasion.
On Sept. 11, Donald Trump proclaimed on Twitter that: "Pelosi and Schumer want Trillions of Dollars of BAILOUT money for Blue States that are doing badly, both economically and in terms of high crime, as a condition to making a deal on stimulus — But the USA is coming back strong!"
This article first appeared in Salon.
Trump was widely mocked in response for being too ignorant to understand that "blue states" are part of the United States.People enjoy laughing at Donald Trump, perhaps because they think it will somehow save them from his wrath, cruelty and violence. It will not.Trump's statements about "Blue States" are just another obvious illustration of the fact that he is not really president of the United States of America. Through his behavior Trump has shown that he is actually the authoritarian Great Leader of his followers only.
Moreover, he has little or no respect, love, care or concern for them either — except as a means of keeping himself in office indefinitely so he can enrich himself, his family, and other close allies.
Trump is not merely indifferent towards those Americans in "blue states" and elsewhere who do not support his regime. He is actively hostile and violent towards them. He has sabotaged aid to the coastal states early in the coronavirus pandemic. He ignored California and Puerto Rico when they have faced natural disasters and environmental calamities. He has encouraged armed militias to stage threatening demonstrations in Democratic-governed states such as Michigan. He has unleashed federal police against protesters in Portland and elsewhere who oppose the regime. He has pursued an overall strategy of stochastic terrorism against Democrats, Black Lives Matter activists, anti-fascists and others he and his agents deem to be "enemies of the state."
Donald Trump and Attorney General William Barr have also suggested they may use the Insurrection Act to deploy the U.S. military against Americans who dare to protest if Trump somehow manages to steal the 2020 election. Barr has even speculated that Americans who protest the Trump regime should be charged with the little-used crime of sedition.
In total, Trump's followers understand that they have been given full permission to engage in acts of violence against his and their "enemies." This would mark one of the final steps in a campaign of Trump-inspired and commanded right-wing violence that began with the 2016 presidential campaign and is now reaching a crescendo as we head toward the 2020 election.
Operating under the banner of "gun rights," hundreds of armed pro-Trump demonstrators gathered last Friday at the Michigan State Capitol. Michigan Live reports:
After two hours of speeches, approximately 1,000 demonstrators marched around the Capitol grounds to the Michigan Hall of Justice. Organizers warned those carrying firearms were not allowed to bring their guns into the Hall of Justice due to a Michigan Supreme Court administrative order.
Instead, the throng gathered on the Hall of Justice steps and chanted "U-S-A" and "Four more years" for President Donald Trump. At one point, about two dozen members of the Proud Boys, a "western chauvinist" group that was recently involved in physical scuffles during a march in Kalamazoo, started chanting "F--- Antifa!"
For decades, if not longer, the American right has fantasized about a second Civil War. With Trump as president, a season of death and suffering from the coronavirus pandemic, and a climate of intense economic ruin as well as political and cultural division, the would-be secessionists may finally get their wish.
Richard Kreitner is a contributing writer to the Nation. His writing has also been featured in the New York Times, The Boston Globe, Slate, The New York Review of Books and The Baffler. His new book is "Break It Up: Secession, Division, and the Secret History of America's Imperfect Union."
In this conversation, Kreitner explains that he sees the Age of Trump is one of several moments in the country's history where it almost collapsed into a state of civil war and widespread political violence. He says America needs a constitutional convention to address the problems in democracy and governance caused by such antiquated institutions as the Electoral College and the U.S. Senate.
At the end of this conversation, Kreitner offers a chilling and timely scenario for how the U.S. could descend into a second civil war that would finally tear red and blue states away from one another.
How are you feeling right now, with an election coming and increasing political violence by the right directed against liberals and progressives?
In the late Obama period it became more obvious to me that the United States is really not united and could quite easily come apart. Given what is now happening with Trump and his movement, I feel somewhat vindicated in that feeling. As a citizen, I feel extremely dismayed that my countrymen are so out to lunch, so far gone that they can't even be bothered to wear a mask or take the most basic precautions for the sake of their fellow human beings — much less their fellow Americans. That is very disappointing. I probably won't get over that fact until after the election, regardless of the outcome.
Talking about Trump and America is almost a kind of euphemism. It is one of the many ways that many people avoid talking about the real issue which is the possible dissolution of the United States. When people talk about the arrival of fascism in America, or Trump sending his stormtroopers to Democratic cities and possibly stealing an election, what are the remedies there? What are we talking about doing in response?
One option is violent revolution. But I doubt that would succeed. The other possible remedy is secession. I believe that we are going to hear many more people discussing that possibility in the near future.
What is the role of extreme political polarization — especially by Trumpists and other "conservatives" — in your narrative of America's disunion?
What we are learning as a people in the Age of Trump is that what holds the United States and the constitutional order together is a matter of habit and practice. I would perhaps go so far as to say inertia. The United States has really not been able to agree on institutional arrangements that would make for a stable and unified nation.
This goes back to the Founding, where at the Constitutional Convention the framers split the difference between states' rights and what we now call nationalism by making the House of Representatives represent the people and the Senate represent the states. It was called a "compromise," but in many ways it was a surrender.
As an example, I think immediately of the 1790s, which was probably one of the most tumultuous and divisive periods in American history. We tend to think of the Constitution as this great, glorious document that created one nation inseparable, but the United States almost collapsed into civil war on multiple occasions.
The 1796 presidential election was absolutely vicious. The country was as divided as it has ever been. It was very much driven by a partisan press where you had different members of the cabinet subsidizing their own newspapers to fight each other.
The 1850s is another fascinating example. Yes, it was polarized, but as today, there was this large group of people on what we would now call the left who were saying, "We're not polarized enough: There are Northerners who give too much to the South. It's the forces of unfreedom. They compromise too much." They called them "Northern men with Southern principles." These were the radical abolitionists, and they were trying to push the country to come to some kind of reckoning with whether it was going to be a slave society or a free society.
These are the heroes of my book, the disunion abolitionists. There were voices saying the Union should break apart if it's not going to stand for liberty. I believe that is the kind of moment America is at right now.
The United States never resolved the first civil war. The idea of a second civil war has been around literally since within months of the end of the first one. Too many Americans do not appreciate that fact. We think that the Confederates and the South were defeated. They were chastened. They came back. They loved America, but only if the Union was reconstructed on their terms. When it was, the Confederates, white Southerners, formed the Ku Klux Klan — which still exists today.
The threat of civil war has always lingered anytime white supremacy in America has come under threat. The forces of white supremacy tried it once. They want to try it again. They lost the civil war the first time. But as we know, they were not vanquished.
If you were called to testify at a 21st-century constitutional convention — which the right has been trying to convene for several decades as a way of forever enshrining its power — what would you suggest be changed?
We do need another constitutional convention, because I do not see another way out of the stalemate that we are in at present. As a country we need to get together and hash out fundamental questions about what kind of country we want and maybe some kind of bargain will be made.
Thomas Jefferson's idea was to rip up the Constitution every 19 years and rewrite it. I would not go that far, but I certainly think that two and a half centuries is enough time.
As for my suggestions, I would abolish the Senate. That is most important. Getting rid of the Senate would make for a much more functional country given how much it exaggerates the power of small states. The Electoral College should also be eliminated.
I think we also need to expand the House of Representatives, because each representative now represents 30 times the number of constituents that they did when the United States Constitution was written.
What would blue states have to lose by leaving red states to survive on their own? And what would red states lose if the blue states said, "We're out of here!"
Red states have a lot to lose. The federal cash payments overwhelmingly go from blue states to red states. What do blue states have to lose? The idea of an American union is very powerful culturally and politically. A crumbling United States is to everyone's disadvantage.
It makes economic sense to be one country and it makes emotional sense to be one country. I have traveled very widely in the United States. I love America. Even Trump supporters are my own fellow Americans. I do not really want to break up with them, but I think it needs to be a viable option depending on what happens next. Moreover, how do we feel about the people with whom we agree and sympathize very deeply with in red states? They would probably suffer considerably if the United States were to break up.
If your book was optioned for a movie, or a think tank approached you to create a plausible scenario for how the United States could potentially break up or fall apart, what would it be?
What is happening right now would be my scenario. There is an out-of-control pandemic. There is a president in Donald Trump who is unbelievably ignorant, utterly incompetent, a liar and so many other horrible things.
There is an election that is existential, one of the most important in American history. There are many millions of guns in the United States and lots of discussions by the right wing about using them. The issues that led to the first civil war remain in many ways unresolved. There is a massive reckoning over the country's own history that has been long postponed. Resolving such matters is rarely peaceful. There are also foreign adversaries and other forces who are interfering in the election. All the elements for the story are present right now in America.
The result has been a steady erosion of the political norms and laws that protect our democracy, culminating in Trump's last big push to steal or corrupt the 2020 presidential election.
If Trump successfully does that, it could well be the killing blow for our tattered democracy. But it's important to understand that the credit for orchestrating the demise of our once-great nation should largely go to Senate Majority Leader Mitch McConnell, a man possessed by the same lust for power and moral turpitude as Trump, but not hobbled by Trump's stupidity or short-sightedness.
It was McConnell who recognized long ago that he could leverage the undemocratic power of the Senate as a weapon to invade and conquer the federal courts, and then use the latter to vacate any effort by the voters to exert real influence on how this country is governed. During Barack Obama's presidency, McConnell deliberately slow-walked the confirmations of Obama's nominations to the federal bench, leaving dozens of seats empty. When Trump was elected, McConnell hit the gas, packing the courts at record speed with an assembly line of nearly identical conserva-bots whose main attributes were youth and a willingness to forgo any intellectual rigor to rubber-stamp the right-wing agenda.
With the death of the Supreme Court's liberal lion, Justice Ruth Bader Ginsburg, McConnell has a real opportunity to complete his mission of crushing democracy completely. Sure, there will still be elections and Democrats may win lots of them, especially this year with so many liberals fired up to throw Trump out of office. But with a possible 6-3 conservative majority on the court, McConnell knows that conservatives can nullify most efforts by those elected officials to pass progressive legislation. McConnell can even stop worrying about Chief Justice John Roberts, who occasionally has a bout of conscience and votes with the liberals to uphold precedent or follow constitutional law.
That commanding court majority won't just serve as a firewall against new laws passed by a Democratic House and Senate. It will also give Republicans an opportunity to undo decades of progress in human rights. McConnell stole dozens of federal court appointments that legally belonged to Obama, but his crowning jewel, of course, was the theft of the seat left open when Justice Antonin Scalia died in early 2016. Using the laughably thin pretext that you shouldn't seat a Supreme Court justice during an election year, McConnell refused even to hold hearings for Obama's nominee, Merrick Garland.
"The American people should have a voice in the selection of their next Supreme Court Justice," were McConnell's exact words. "Therefore, this vacancy should not be filled until we have a new president."
Right now, Democrats are understandably up in arms about McConnell inventing this "not during an election year" rule and then dropping it the second he had a chance to seat a judge during not just an election year, but right in the thick of a presidential campaign.
But in truth, McConnell's blatant hypocrisy was visible long before that, when he first filled the seat that he stole with Trump's nominee, Neil Gorsuch. The American people most certainly did not want Trump to fill that seat. The American people picked Barack Obama to fill that seat, when they elected him in 2012. They then chose Hillary Clinton, by a margin of nearly 3 million votes over Trump, to fill that seat.
Consider also that the American people picked Al Gore over George W. Bush in the 2000 election — by about 500,000 votes. If it were up to the American people, it's arguable that seven of the nine current Supreme Court would be Democratic appointees.
We also know from polling that 62% of Americans believe that the person who fills Ginsburg's seat should be the person who wins the election.
Trump is a notorious, pathological liar, but we can't let that get in the way of seeing that McConnell is just as rotten, and much craftier about being evil, to boot. McConnell loves to resort to high-minded rhetoric about democracy, but he's clearly laughing up his sleeve the entire time. If Americans had a real democracy, McConnell wouldn't even hold his leadership position: A majority of Americans have been voting for Democrats in Senate races for years, but Republicans control the upper chamber of Congress because the Constitution gives disproportionate power to rural states with small but overwhelmingly conservative populations.
Even this unfair stranglehold on power isn't enough for McConnell, however, which is why he has lied, cheated and stolen his way to control the federal judiciary. He intends to use that same judiciary to steal even more power for Republicans at the ballot box, because conservative judges are only too happy to hand down rulings on voting rights and gerrymandering that allow Republicans to further eviscerate Americans' ability to choose their own leaders.
The ugly, hard truth is that the constitutional crisis has been going on for years, and the architect of our demise isn't Donald Trump. He's just a loudmouth bully Republicans can hide behind to get what they've always wanted — to hold onto power without being accountable to the voters.
Sure, this presidential election is important, but getting rid of Trump isn't enough to save us. If Democrats can pull off this election, we will need drastic reform — starting with packing the courts and major voting-rights legislation — simply to begin to undo all the damage done by McConnell and his crew. Not because that's good for the Democrats, although that would be a likely side effect. But because our democracy is taking its last breaths, and without major intervention it will be lost to us for good.
As half or more of the 2020 presidential election's votes will be cast on mailed-out ballots, a new study on why absentee ballots were rejected in three urban California counties in 2018 reveals why young voters' ballots were rejected at triple the rate of all voters.
Nationally, it is well known that absentee ballots arriving after state deadlines, problems with a voter's signature on the return envelope not matching their voter registration, or a missing signature account for more than half of all rejected ballots, as the latest federal statistics affirm. But a new California Voter Foundation (CVF) study reveals the most likely causes behind those errors, especially for young voters.
In short, the study notes that young (ages 18-34) voters' signatures can change between registering to vote and voting, causing mismatches on return envelopes. (The envelopes don't remind voters that their signature has to match their voter registration.)
Additionally, young voters often wait until the last minute to vote, not realizing that voting with an absentee ballot has more steps than voting at an in-person polling place. And young voters may be unfamiliar with mail delivery timetables, leading ballots to arrive past return deadlines.
"In Sacramento County, young voters age 18-24 were most likely to have their ballot rejected due to a mismatched signature, followed by lateness. Voters age 25-34 also had a high rate of non-matching signatures," the study said. "These factors may be due to young voters' likely lack of familiarity with using the U.S. Postal Service as well as the possibility that their signature was not fully formed at the time they registered to vote."
On the other end of the voter age range, a different human factor related to aging—being forgetful—was a cause behind absentee ballot rejections for older voters, the study also found, atop missing filing deadlines.
"Older voters, age 55-64 and age 65 and over are more likely to neglect to sign their ballot envelope than voters in other age groups and to have their ballots rejected for this reason," the CVF report said.
The study looked at the absentee ballot-rejection rates in the November 2018 election in the counties of Sacramento, San Mateo and Santa Clara. The rejection rates for voters age 18-24 in those counties were 2.3 percent, 3.5 percent and 2.5 percent, respectively, compared to 0.8 percent, 1.0 percent and 0.7 percent for all voters. The rejection rates for voters age 25-34 were nearly double that of all voters.
While much attention continues to be foisted on how the Trump administration is trying to subvert postal delivery of ballots and undermine public confidence in voting with mailed-out ballots in the 2020 fall election, the CVF study was a reminder that human factors are part of the equation of whether one's vote will be counted.
"Casting a vote-by-mail ballot is an important safety measure to ensure people can vote during the coronavirus pandemic without putting their or other[s'] health at risk," said Kim Alexander, CVF's president and co-author of the report, "Improving California's Vote-by-Mail Process by Reducing Ballot Rejection: A Three-County Study."
"But it shifts responsibility for getting it right from poll workers to voters," she continued. "Late return and envelope signatures missing or not sufficiently matching voters' signatures on file are the leading reasons why some ballots are rejected."
A Looking Glass Into National Trends
The CVF report illuminates causes behind what could become one of the most contentious vote-counting issues in swing states if the election is close and early results are challenged: the discovery of higher ballot-rejection rates among some populations but not others.
The pandemic's rapid shift to voting with mailed-out ballots is one of the biggest changes in American democracy in years. While a small percentage of returned ballots have always been rejected, the rapid expansion of voting by mail in 2020's primaries led to higher rejection rates, according to early analyses. Nationally, the rejection rate was 1.4 percent in the 2017-2018 cycle. But so far in 2020, the rate has been 2 percent or higher in a few swing states.
As of September 16, 59 million ballots were on track to be mailed to voters for the general election. As of that date, four states—North Carolina, South Carolina, Illinois and Florida—have seen about 59,000 voters return their presidential election ballots, according to University of Florida political scientist Michael McDonald. Almost all of those returned ballots were in North Carolina, the first state to mail out ballots. The first 10,000 ballots had a rejection rate of about 2 percent, CNN reported, noting that the rate for Black voters was "nearly 7 percent."
Nationally, there is ongoing litigation led by Democratic Party lawyers to push states to change their ballot envelope review procedures to try to lower signature-based rejection rates. Many of these lawsuits were filed months ago and are just now being resolved. In Pennsylvania on September 14, a federal suit was withdrawn after statewide election officials issued "new guidance" that signature mismatches could not be the sole reason to reject a voter's absentee ballot.
These lawsuits' focus is the part of the process that involves reviewing and checking in a ballot return envelope at election offices—much like a voter is checked into their precinct by the poll worker. The signature and other information on the ballot return envelope are compared to a signature on file and other identifying information in voter records. These lawsuits seek better matching standards and a way for voters to "cure" any problem that surfaces.
Over the past decade, California's ballot-rejection rates have been on par with national trends, with 1.7 percent of California's vote-by-mail ballots being rejected, the CVF study said. It also illuminated some of the reasons why ballots were being rejected—and why different age groups were prone to variations in error rates and types.
"[T]he top three reasons… are that voters returned them too late to count, they neglected to sign the ballot envelope, or the signature they provided on the envelope did not sufficiently match their voter registration signature on file with the county," the study said, summarizing.
But there were other reasons for rejected ballots, it found. Some return envelopes were empty. Some envelopes were from past elections. Some people voted in person after mailing in their ballot. Some voters had died, but a family member returned their ballot. Sometimes more than one ballot was put in a single envelope. Some voters mixed up their household's ballots, and used another voter's return envelope for their ballot.
The CVF study also noted that human factors in election administration made a difference in giving voters a chance to fix one of the top causes of rejections: signature mismatches.
One example came from Sacramento County. In the November 2018 election, 39.6 percent of the county's rejected ballots were due to non-matching signatures, compared to 4.4 percent in San Mateo County and 9.5 percent in Santa Clara County, the study found. (The national rate for non-matching was 15.8 percent in 2017-18, according to federal statistics.) Sacramento County's discrepancy was due to an administrative decision to not double-check the return envelope signature that had been questioned, CVF said.
"The likely reason for this relatively higher rate of rejection for non-matching signatures in Sacramento's November 2018 election was a change in the office's leadership that took place immediately after Election Day, and a procedure that had been in place in prior elections, requiring a second review by election staff or an election supervisor of challenged signatures, was not in effect," the study said.
Curing Signature Issues
In other words, just as there are human factors on the voters' end that can result in mailed-out ballots not being accepted and counted, there also are human dimensions to how the election administrators act—or do not act—on behalf of the voter.
Nationally, there are currently 19 states that have a process where voters are to be contacted by local election officials and given a short time to resolve the signature—usually by coming into an election office and submitting a form to update their signature on file. California is among those states.
The CVF study suggests that more than half of the voters contacted will follow through to ensure their votes are counted. Statewide, the "cure" rate for signature mismatches was 52.9 percent in 2018, the study said. That rate was because "California laws for signature curing were evolving in 2018."
The report also noted new ballot-tracking software will allow voters in some California counties to follow their absentee ballot through the application and delivery process, much like people can track packages after online purchases. (Other states are also debuting these tools.)
That tracking tool will make the absentee ballot process less opaque. But as the CVF report highlights, voters should be aware of the human causes why their ballots are rejected, starting with errors made by voters in the youngest and oldest age groups. Young people's signatures change. They decide to vote at the last minute. They don't return their ballot soon enough. And older voters must check that they haven't skipped anything, starting with their signature on the ballot return envelope.
The stock market, the faltering Trump campaign’s last straw of hope for the November election, is turning out to be the Republican nominee’s short straw.
After a month of gradually falling stock prices, Wall Street on Monday was delivering a stunning repudiation of the current occupant of the White House and his radical Senate enablers for their failure to control the COVID-19 pandemic and to address the resulting collapse of the economy.
Just last week, Trump touted the stock market’s generally positive performance through the pandemic: "Look, we're having a tremendous thing in the stock market, and that's good for everybody, but people that aren't rich own stock and they have 401(k)s," he said at a town hall appearance on ABC.
The Dow Jones Industrial Average, the most closely watched stock market indicator, was down nearly 3% by early Monday afternoon. Every significant market gauge also flashed bold red: Gold prices fell. Oil fell. Silver collapsed. The Nasdaq composite index, where brand-name tech companies dominate, was well within what market professionals call a “correction,” a 10% or greater fall from its latest high-level mark set in early August. The S&P 500, which clocks the stock performance of the largest U.S. companies, was down 7% from its record high set Sept. 2.
The debt markets were also in disarray as yields—interest paid—on U.S. Treasury notes and bonds fell.
Investors were assessing an array of risks, reported the pro-business Wall Street Journal, including Senate delays to additional fiscal-stimulus packages, an increasingly heated U.S. election campaign season exacerbated by the death Friday of Supreme Court Justice Ruth Bader Ginsburg, continuing tensions with China and the threat of renewed lockdowns in many places because of higher coronavirus infections.
“It seems like the biggest reason for the decline in most global stock markets is the concern that tighter virus restrictions in Europe will result from the new spike in COVID cases now that the colder weather is upon us,” said one market analyst quoted by CNBC. Another noted that a new stimulus bill is now “unlikely until post-Nov. 3 as the fight over Justice Ginsburg’s empty seat will consume D.C.”
Carnage in the market was widespread. At midday, tech giants Apple, Microsoft and Amazon were all off by at least 1.6%. For the month, Apple was down 18% and Microsoft has lost 12.5%. Amazon has dropped 16.3%.
Banks were also hit hard after a report found that a number of global banks moved allegedly illicit funds. Shares of Deutsche Bank dropped 8.3%, while JPMorgan Chase fell 2.8%.
President Donald Trump appalled social media users by suggesting that Ruth Bader Ginsburg's dying wish was a Democratic "hoax."
The president questioned a statement dictated to her granddaughter -- "My most fervent wish is that I will not be replaced until a new president is installed" -- during his wide-ranging interview Monday morning on "Fox & Friends," where he promised to nominate Ginsburg's replacement by the end of the week.
“I don’t know that she said that, or was that written out by Adam Schiff or Pelosi?" Trump told the co-hosts. “I would be more inclined to the second, okay – you know, that came out of the wind. That sounds so beautiful, but that sounds like a Schumer deal, or maybe Pelosi or for Shifty Schiff. So that came out of the wind, let’s say. I mean, maybe she did, and maybe she didn’t.”
The president's baseless claim landed with a thud on Twitter.
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