Following Up: Still No Signs That Abortion, Guns — or January 6th — Are Democratic Midterms Lifesavers

Tags

abortion, Biden, Buffalo shooting, Democrats, Donald Trump, election 2022, election 2024, Following Up, gun control, January 6 committee, mass shootings, midterms 2022, polls, RealClearPolitics.com, Republicans, Roe v. Wade, SCOTUS, Supreme Court, Uvalde shooting

Since early May, American politics has been rocked by the kinds of major shocks that I can’t recall coming so fast and furiously since at least the Nixon impeachment summer of 1974, and maybe since the spring of 1968 — when the Vietnam War’s Tet Offensive led to Lyndon Johnson’s withdrawal from that year’s presidential race,and was followed by the assassinations of civil rights leader Dr. Martin Luther King and New York Democratic Senator Robert F. Kennedy (for starters).

The last two months of this year alone have been marked by the leaked draft and final release of the Supreme Court ruling that ended nearly fifty years of a national right to an abortion, two appalling mass shootings (one racially motivated in Buffalo, New York, and one of school children in Uvalde, Texas), and televised Congressional hearings that have bombarded the nation with reminders of both the disgraceful January 6^th Capitol attack and former President Donald Trump’s reckless behavior that day.

On net, these developments would seem to damage Republicans’ chances of an midterms election landslide of epic proportions this November. As I’ve noted, even though the abortion developments could motivate heavily Republican anti-choice voters, too, the overturning of the 1973 Roe v. Wade decision at least gave Democrats one reason for optimism where none could plausibly be detected – because everything we know about public opinion tells us that Americans decisively favor keeping Roe. (The same arguments hold for mass shootings, IMO, as do poll results on gun control).

But at the end of May, I reported the absence of polling evidence that the guns and abortion issues were turning the tide. Now, a month later, they — along with the January 6th Committee hearings — still haven’t shown any midterms lifesaving potential for the Democrats. In fact, some survey measures suggest that the Republican position has strengthened somewhat.

As often, my sources are the averages of poll results compiled and updated on an ongoing basis by RealClearPolitics.com. Let’s start with an important indicator of midterm outcomes – presidential popularity.

The Politico.com scoop on the Supreme Court abortion draft leak appeared the evening of May 2, so May 3 seems like the baseline to use for measuring how the aforementioned news shocks have changed midterms prospects.

On May 3, according to the RealClearPolitics average, President Biden was underwater in terms of job approval ratings by 10.5 percentage points. As of today, the share of Americans admiring his performance in the White House stood at 38.4 percent and the share giving him thumbs downs was 56.9 percent. So his net negatives have nearly doubled, to 18.5 percentage points. In addition, that gap is only slightly narrower than the record 19.5 percentage points registered just yesterday.

And worse for the President, and his party: His popularity has deteriorated both because his approval ratings are as of today (38.4 percent) just off their all-time low and the disapproval numbers (56.9 percent) are just shy of their all-time high (both also set yesterday).

Pollsters also offer respondents a “generic Congressional ballot” – asking them whether they’d be likelier to cast ballots for Democratic or Republican candidates for House and Senate whoever the specific candidates on their ballots are. Although it deals with the elections that will actually determine which party winds up with majorities on both ends of Capitol Hill, its readings need to be viewed with caution because Congressional elections aren’t national but state-by-state and district-by-district. In fact, because of the Constitution’s approach to apportioning Senate and House seats, Republicans enjoy a built-in edge here, meaning that at least when it comes to the generic ballot, Democrats need to be winning by several percentage points to justify election day optimism.

According to RealClearPolitics, they’ve made some progress since May 3, but still have a ways to go.

The day after the Supreme Court leak, Republicans led the Dems by this measure by 4.1 percentage points. By May 29, that margin had shrunk all the way down to 1.5 percentage points. But as of today, though, it’s back up to 2.2 percentage points, and has remained stable overall since June 5.

Finally, and perhaps most discouraging for the Democrats given their efforts to portray most Republicans as backers of an extremist, Trump-y “ultra MAGA” agenda, the former President continues to lead Mr. Biden in polls asking about a head-to-head match-up in 2024. The website doesn’t post averages over time – just a single average figure that shows a Trump lead of 1.8 percentage points as of today.

Changes revealed in individual surveys can be interpreted as either favorable or unfavorable to President Biden depending on your baseline starting date. Specifically, in late April (just before the Politico leak), two polls showed him leading his predecessor by one and two percentage points. So since then, the President has lost ground. But a mid-May survey reported a three percentage point Trump lead. So since then, Mr. Biden has gained ground, though he’s still behind.

What does seem fair to say, though, is that no polls report any burgeoning public disenchantment with Trump since recent events that can credibly be argued have placed him, his views on gun control, and the Supreme Court Justices he appointed, in more negative lights. And revealingly, the latest set of Biden-Trump election results, in this Emerson (Massachusetts) College survey, showed Trump with his biggest edge (five percentage points) since late March – even though it was conducted the day of former White House aide Cassidy Hutchinson’s explosive anti-Trump testimony before the January 6^th Committee, and the day after.

All of these trends could easily reverse themselves in the months remaining before November – if only because more politically charged shocks could easily be in store. In addition, voters’ views on the recent shocks could grow more intense and likelier to influence their voting. (Here’s some new evidence for that proposition.)

But what seems most striking to me at this point is how stable the polls have been despite the recent string of arguably pro-Democratic bombshells – and consequently how dim their November prospects remain.

Following Up: Sense and Nonsense in the Abortion Debate

Tags

abortion, abortion rights, birth control, Clarence Thomas, Constitution, contraception, Dobbs v. Jackson Women's Health Organization, Following Up, gay marriage, Ninth Amendmen, Planned Parenthood of Southeastern Pennsylvania v. Casey, privacy, Roe v. Wade, same-sex marriage, Samuel Alito, Supreme Court

Even by the standards of the shameful misinformation- and sheer ignorance-dominated era in which we live, the national abortion debate is noteworthy for the shameful misinformation and sheer ignorance it’s generated, So I thought it would be useful to provide some crucial correctives.

First, the 1973 Supreme Court Roe v. Wade ruling just overturned by six of today’s Justices did not create an absolute Constitutional right to an abortion. That majority opinion specifically stated that

“appellant [Jane Roe, the pseudonym of the pregnant woman who brought the case] and some amici [individuals and organizations that provided supportive “friends of the court” briefs] argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant’s arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman’s sole determination, are unpersuasive. The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.”

The Roe majority added its agreement with prior federal and state court decisions that, although the right of privacy “is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant.” .

Second, as a result, “codifying Roe” through Congressional legislation, as sought by many critics of the Court’s Dobbs v. Jackson [Mississippi] Women’s Health Organization ruling overturning Roe, would not create an absolute Constitutional right to an abortion, either. In fact, the specific legislation offered in the House and Senate would clash violently with both the Roe and the follow-on 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey decision by preventing the state or federal governments from imposing any limits on abortions “after fetal viability.” as long as “in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.”

Third, whatever was contained in legislation establishing national abortion rights, an act of Congress could well wind up providing only the most short-lived of guarantees. For that law would be likely targeted for abolition as soon as anti-abortion politicians gained sufficient control of both Houses of Congress and/or the Presidency (depending of course on whether a majority achieving this goal was veto-proof). And if the Senate filibuster is ended – another goal of many abortion rights backers – scrapping an abortion rights law would be even easier.

Fourth, I wrote on Friday that a Constitutional right to privacy is essential for any political system like America’s that claims to value individual liberties, whether it’s explicitly mentioned in the U.S. Constitution or not. As with all legitimate rights, it can’t be absolute – because in principle and in real life, too many of these can come into conflict. But without an underlying right to privacy, no limits on government’s authority to control individual behavior would exist save those that are explicitly mentioned in the Constitution.

These are numerous and important (like freedom of expression and religion, the right to keep and bear arms, to be protected against unreasonable searches and seizures). And although it’s often overlooked, the Ninth Amendment holds that “certain rights” not enumerated in the Constitution must be “retained by the people.”

But the text of the Ninth Amendment offers no examples or guidance of any kind. And without an underlying right to privacy, it’s not the slightest bit difficult to understand that despite the assurance offered by the Dobbs majority, many other current individual liberties could be endangered. Nor is the evidence limited to Justice Clarence Thomas’ opinion concurring with the Dobbs ruling, which argued that with the right to privacy out of the way, Supreme Court rulings legalizing contraception, same sex marriages, and same sex relationships should be overturned with the same logic.

Even now, politicians in some states are moving to outlaw certain kinds of birth control devices. And it’s surely pertinent to note that Dobbs opinion author Justice Samuel Alito – who insisted that “It is hard to see where we could be clearer” in stating that the majority opposed equating the legalit of abortion and the legality the other forms of intimate behavior mentioned above – himself opposed the 2015 pro same-sex marriage decision using the exact same kinds of arguments he made in Dobbs. So I certainly think he could have been clearer.

But there’s another important reason to prize a right to privacy.  It has to do with the nature of constitutions themselves. Their whole point (unless they’re the phony kind concocted by dictatorships) is establishing limits on government. Why else bother with such exercises? And what set of limits on government is more crucial than those determining how it can and cannot treat private individuals’ behavior? 

These four aspects of the abortion rights debate certainly don’t exhaust the list of  falsehoods and plain old hare-brained ideas warping a controversy that’s otherwise entirely legitimate and necessary. But the sooner they’re recognized and cashiered, the likelier the nation will be to craft (or re-craft, as I’d put it, given my belief that Roe and Casey got the basics right) an abortion consensus behind which Americans can unify.  

Im-Politic: The Court’s New Abortion Decision is Egregiously Wrong Itself

Tags

abortion, abortion rights, Constitution, Dobbs v. Jackson Women's Health Organization, gun control, Im-Politic, Planned Parenthood of Southeastern Pennsylvania v. Casey, privacy, Roe v. Wade, Supreme Court

The Supreme Court has finally decided to overturn the 1973 Roe v. Wade ruling supporting a Constitutional right to an abortion based on the majority’s vigorously argued position that “Roe was…egregiously wrong and on a collision course with the Constitution from the day it was decided” and that the follow-on 1992 Casey decision “perpetuated its errors.”

Maybe so, but at least based largely on the official summary (the Syllabus) of today’s ruling released by the Court, the six Justices who backed the Dobbs v. Jackson (Mississippi) Women’s Health Organization decision expressed some views themselves about what government can and can’t regulate that look pretty internally contradictory at first glance and that seem – eggregiously – at variance with ideas about Americans’ liberties that – to quote a legal standard they cite – are “deeply rooted in [our] history and tradition” and “essential to this Nation’s ‘scheme of ordered liberty.’”

Perhaps first and foremost, the Dobbs ruling states that “the authority to regulate abortion is returned to the people and their elected representatives.” And at least since a draft of the decision making this point was leaked in May, any number of pro-life supporters have argued that rescinding the right to an abortion by no means amounts to a nation-wide ban on the practice, and that states will remain perfectly free to keep or enact permissive abortion policies.

But in Dobbs, the Court has also called abortion a “critical moral question” because it “destroys what Roe termed ‘potential life’ and what the law challenged in this case calls an ‘unborn human being.’” Today’s Dobbs decision emphasizes this point in order to insist that their judgement poses no intrinsic challenge to other rights concerning highly personal behaviors, like the availability of birth control or gay marriage – which presumably don’t rise to abortion’s level.

All of which raises the question: If abortion is in a morality class by itself because of its devastating effects on the unborn, why do the six Justices supporting the Dobbs decision believe that states should have the any authority to regulate it? What satisfactory definition of morality could permit such a uniquely heinous practice to be permitted anywhere in the United States? Why, indeed, should it not be banned nationally – with or without whatever exceptions this or future Courts happen to allow.

In fact, contrary to the majority’s views, today’s Dobbs decision leaves in place many of the gravest threats to Americans’ freedom from government’s reach that appeared to receive support in the leaked draft version. Principally, the Court has now affirmed that not only does the Constitution grant no right to an abortion. It also holds that there’s no right to privacy having to do with the freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy.”

To be sure, the six Justices in the majority correctly contend that no Constitutionally granted rights are absolute, observing that this founding document creates a system of “ordered liberty” that “sets limits and defines the boundary between competing interests” – and also, by extension, between competing rights, since many regularly clash with each other in real life.

But if the American system of government and law aren’t distinguished fundamentally by the assumption that a substantial burden of proof lies with government for infringing on the freedom to make “intimate and personal choices” related to “personal dignity and autonomy,” then it’s difficult to imagine fundamentally what it is distinguished by. In other words, if you can’t find something like a “right to privacy” in the Constitution, you’re not looking very hard.

And ironically, just yesterday, the Court supported this kind of argument when it struck down New York State’s “concealed carry” gun control law. That majority argued that this statute unconstitutionally “required law-abiding, responsible citizens to ‘demonstrate a special need for self-protection distinguishable from that of the general community’ to carry arms in public.” That is, an excessive burden of proof was placed on ordinary Americans, when it should belong to government. Why shouldn’t this kind of reasoning apply to abortion?

Finally, how can anyone believe that “a State’s regulation of abortion is not a sex-based classification” that “violates the Constitution’s Equal Protection Clause?” What men does the Dobbs majority believe will be affected by its decision? And how can these Justices reject the – inevitably gender-based — logic of the Casey decision’s statement that

“The Roe rule’s limitation on state power could not be repudiated without serious inequity to people who, for two decades of economic and social developments, have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives”?

One claim made by many Dobbs supporters is true — the practical, on-the-ground effects of the decision will be limited for the time being , mainly because the total numbers of legal U.S. abortions have been falling significantly in the last three decades, and because practically all of these have taken place during a pregnancy’s first trimester. (See here for the data.) Interestingly, that’s after Mississippi’s proposed abortion near-ban would go into effect.

Moreover, some other so-called “trigger laws” will allow abortions early in pregnancies, too. But others (see, e.g., here) will significantly narrow this window (even outlawing the procedure before most women even know they’re carrying), and in some of these and others, the lack of exceptions for instances of rape and incest, for example, are truly abhorrent. And now with Dobbs the law of the land, who knows what other outrages may lie in store?      

At one point the Dobbs ruling, the majority wrote that “In interpreting what is meant by ‘liberty,’ the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent
views about the liberty that Americans should enjoy.”  As far as I’m concerned, that advice about leaving personal beliefs out of judicial decisions is a vitally important rule of thumb across the legal board, and as indicated by the above examples of tortured reasoning in today’s abortion rights decision, it’s one the Dobbs majority just threw under the bus.    

Im-Politic: Overturning Roe Could Backfire Big-Time on its Opponents

Tags

2022 election, abortion, abortion rights, choice, Constitution, Democrats, election 2022, Im-Politic, midterms 2022, Republicans, Roe vs. Wade, Supreme Court

One of my favorite sayings has always been “Be careful what you wish for. You may get it.” And if life is remotely fair, it could well come back in spades to haunt supporters of the Supreme Court’s apparent decision to overturn the 1973 Roe v. Wade abortion ruling.

Before explaining why, I should briefly re-lay my cards on the table on abortion generally. As explained in this May, 2019 post I’ve supported Roe because of all the evidence that it conforms with a strong, consistent, public consensus in favor of a thoroughly reasonable compromise solution to the abortion dilemma. Specifically, the national default position is that abortion should be legal, but individual states, reflecting the beliefs of their populations, should be able to impose some restrictions.

In other words, Roe never established an unqualified right to abortion – because unless we’re talking about hermits, rights in human societies, including those enshrined in the Constitution, can never be unqualified. There are simply too many rights, and they too often collide with other rights and imperatives. So durable balances need to be struck, and from time to time, they need to be modified in light of changing circumstances.

They don’t make everyone happy, and they leave important inequities. But given the existentially heated and fiendishly complex nature of abortion, despite all the resulting and inevitable controversy stirred by the ruling and by the underlying issue, Roe succeeded on those crucial grounds. In everyday parlance, it was “good enough.”

At the same time, almost none of Roe’s opponents really seem to believe that there is an unqualified right to life, much less that it begins at conception. Certainly, that’s not an argument made by the leaked Supreme Court ruling. Nor is it claimed by the Mississippi abortion law that the Court is still considering, or by the even stricter new Oklahoma statutes.

The above description of Roe doesn’t take into account the argument that the decision fails by purely legal and Constitutional standards. Indeed, even leading pro-choice Constitutional experts have agreed with that judgment. But the underlying assumption that law stands clearly apart from politics can’t withstand serious scrutiny – and certainly not in any system of representative government. In such systems, legitimate laws can’t help but originate ultimately in that society’s values and culture, and politics is one indispensible method of figuring out how to enable those preferences to govern behavior and resolve disputes in mutually acceptable ways.

As I noted in the 2019 post (quoting a prominent historian of the Constitution), a crucial test that the Supreme Court must pass, (including for its own public support), is avoiding getting too far ahead of public opinion or trailing too far behind. That is, responsible justices will be exceedingly mindful of politics, its changes, and the trends underlying them. For the past half century, the Supreme Court justices who upheld Roe achieved that objective.

So assuming Justice Samuel Alito’s draft ruling stands, how is it likely to backfire on Roe opponents? For starters, they’ll need to start thinking seriously about a challenge that the 1973 ruling has enabled them to duck for decades, especially if Roe’s demise does significantly reduce the numbers of abortions.  The Roe opponens will need to deal with making sure that all the babies that aren’t aborted under the new regime have a real chance of leading satisfactory lives. After all, if you believe in the right to life, how can you neglect the quality of that life?

So unless there’s any chance that private adoption services will be able to place all the newborns with competent, caring parents (spoiler alert: there’s no chance), then the biological mothers and, when they stick around, fathers, will need a wide range of pubicly provided services and supports. In other words, Hello, Big Government. And those services and supports, which may have to be very long-lasting for the many new moms who are teens, won’t come cheap. So get ready for much higher taxes or deficit spending or some combination of the two.

For older new mothers who need to work, these supports will need to include paid family leave – whether by government or employers or some combination of the two. And if the goal is to help all the new children, this leave will need to extend for years – not just a few weeks. Moreover, this paid leave will also be needed even for many mothers who have working spouses or stable partners of some kind, unless these spouses or partners earn enough to pay all the household’s bills on their own.

Of course, there’s an alternative for the working mothers: Taxpayers spring for childcare. For as long as it’s needed. If, as is likely, Roe opponents don’t want governments handling this responsibility, they’ll need to admit many more immigrants to fill all the new positions private providers presumably would create. But no responsible Roe opponent would ever permit just anyone care for children, whether in government or for-profit or non-profit outfits. So extensive vetting and even training systems will need to be put into place, too.

In addition, for all the states that ban abortion very early in pregnancies, when many women aren’t even aware they’re pregnant, it’s only fair that they hand out accurate pregnancy test devices or pay for tests by physicians’ offices. That is, more expenses – and taxes or debt.

Finally, Roe opponents may well rue its demise this year on political grounds. It’s true that they may be able to fire up their voters to turn out to defend anti-Roe candidates in this year’s midterm Congressional elections as Roe supporters are to mobilize theirs on behalf of office-seekers pledged to codify it as federal law, and/or support nominated judges likely to try restoring Roe or at least its protections.

But it’s also true that whereas before yesterday, Roe supporters (who tend to be Democrats and Democratic leaners, just as opponents trend the opposite way) had almost no issues with which they could inspire their voters (because of the Biden administration’s failures on so many fronts), now they may have one issue that can help close the so-called enthusiasm gap and improve their performance this fall. So that shapes up as a net loss for Roe opponents and the GOP overall.

The opponents’ losses could be even worse, however, since (as shown by the poll linked above) Roe is pretty popular with the moderate Republicans who deserted the party in the 2020 presidential election and helped Joe Biden win the White House. They may not be incredibly numerous, but by definition they’re often found in many of the swing districts and states that could greatly determines which party controls the House and Senate. (It’s their presence that makes these precincts up for grabs – when it’s not the presence of moderate Democrats.)

Nonetheless, it’s also distinctly possible that such a Roe effect may not materialize, or flare briefly and then fade between now and November. (That’s clearly been the case so far for the January 6 Capitol riot, to my surprise.)  Further, abortion won’t be the only issue on voters’ minds, and any number of events could intervene in the weeks and months ahead to alter the political odds. 

Whatever the political impact, however, the nation seems fated to deal with some serious and potentially tragic real world fall-out from the Supreme Court’s seeming plans for Roe, unless the justices reverse course. Is it too much to hope that they remember another of my favorite expressions:  “If it ain’t broke, don’t fix it”?              

Im-Politic: On Racial Preferences, the Case for Just Keeping Quiet

Tags

affirmative action, African American women, African Americans, Biden, discrimination, diversity, election 2020, equity, gender, identity politics, Im-Politic, quotas, race relations, racism, Supreme Court, women

It’s easy to understand why President Biden has decided not only to make his upcoming Supreme Court appointee the first African American woman nominated for this position, but to announce this decision in public. The African American South Carolina political leader whose support he desperately needed to keep alive his badly floundering 2020 Democatic presidential primary campaign “suggested” he do so. So Mr. Biden clearly had no choice politically speaking.

But the then-candidate’s promise, and his equally public move as President to keep that promise, raise questions about how identity politics considerations should influence these kinds of personnel decisions, and especially whether they can be handled in less controversial and even more unifying ways.

My answers: At least when it comes to big population/identity groups that are significantly under-represented in U.S. institutions of government, I see strong reasons to make sure that they become better represented, but also for the appointers simply to keep quiet about checking off race and ethnicity and gender and similar boxes.

Regarding the “affirmative action” issues involved here, as I’ve mentioned here, I’m generally supportive of (the wide variety of) such programs for African Americans. But for other major ethnic groups, who simply haven’t suffered comparable official and unofficial racism and discrimination for anywhere near as long, I regard the case as significantly weaker (though not entirely invalid for every single group).

For the purposes of this post, I’m not thinking of all the legitimate legal and historical complications involved. And race isn’t the only group of categories that need to be considered. Certainly women have been greatly under-represented in these positions for the entirety of American history (though they’ve certainly achieved great catch-up in politics and in lucrative, powerful professions like medicine and law).

Instead, I’m thinking this way: In 2021, would it really be acceptable if all Supreme Court Justices or the leadership of other government agencies or U.S. Senators or members of the House of Representatives were white men, even if they were all superbly qualified? It’s hard to imagine that any fair-minded person would be happy about that situation. It’s equally hard to imagine that such a person could have real confidence that bullet-proof considerations of merit (as opposed to reliance on credentialism, which is often very different) were 100 percent responsible for this kind of racial and gender monopoly. And there’s abundant evidence (as presented in the RealityChek post linked above) that the wide range of preferences created at the federal and state levels of government, and in academe and private business, deserve much credit for that racial monopoly fading to the impressive extent that it has.

So if it’s legitimate to want these important positions to be at least somewhat representative of the population at large in terms of major demographic groups, there shouldn’t be anything intrinsically wrong for an appointer to decide to give a preference to under-represented groups, especially as long as he or she makes clear (as Mr. Biden has), when he promised to name someone “with extraordinary qualifications, character, experience, and integrity….”

But that’s where the President ideally would have stopped, and simply proceeded to identify those (in this case) African American women (of whom of course there is no shortage) who fit this description. Naturally, because he made the pledge during the campaign, the President had to repeat it. But it’s also where all future appointers should stop – with the possible exception of declaring an intent to make “an historic choice.”

Because stopping short of specifying the identity traits being sought would prevent any fair-minded person from reasonably and convincingly accusing an appointer of prioritizing race over merit. For challengers would be put in a position of insisting that, say, Leondra Kruger – and her service on the Supreme Court of the country’s largest state, and seven years as in senior U.S. Justice Department positions, and topflight education and judicial clerkships – lacks any qualifications to serve on the highest court in the land. In fact, these challengers would be put in the position of arguing that she’s less qualified than virtually everyone else who has sat on the Supreme Court of the United States, and especially all its white male members.

Clearly, some would still maintain that this kind of resume simply proves adroit use of racial preferences to rise through the nation’s legal ranks literally for decades, and that a (really) wide variety of individuals and institutions enabled her literally for decades. Let’s just say that I’m grateful that I don’t have to make that argument.

By having made and then repeating his African American women promise, however, the President has inevitably directed the spotlight toward race and given “reverse racism” ammunition to those looking for excuses to curb the place and role of minorities in American life – and who rarely expressed much concern about discrimination when the racial shoe was on the other foot. It also seems credible to me that, as some believe, Mr. Biden’s has unwittingly undermined public confidence in this and all of his future non-white male nominees.

But for politicians who don’t paint themselves into identity politics corners as Mr. Biden did, and who want to foster more progress for major demographic groups in places where they have been denied adequate opportunity, the best course of action is clear: Choose highly qualified members of these groups (as with African American women, they won’t be hard to find) and let their qualifications speak for themselves. And if asked whether identity affected the decision, they could reply something to the effect that “It’s great that past mindfulness to identity issues has done so much to bring such an unquestionably able and qualified individual to the fore.”

Now does this mean that firm quotas and targets should be set for appointing or hiring members of these groups? No – because nowadays, and especially for job and position categories that are relatively small (like “Supreme Court Justice”) such policies would deny appointers and hirers the flexibility and the consequent opportunity to exercise judgment upon which so many – even most – good decisions depend. Nor am I saying that whatever formal preferences have existed should be kept in place indefinitely, regardless of progress. When conditions change, policy and practice should, too.

And as implied by my references to “major demographic groups,” preferences simply can’t be extended sweepingly to every single category to which Americans belong or with which they identify. The numbers of these small groups are simply too high to enable them all to be accommodated – and again, especially for positions themselves that are relatively few in number.

Worse, trying to run such a system would inevitably ignite a fierce and unforgivably absurd competition among groups laying claims. Unless we really want to sponsor debates and fights (is this a forerunner?) over Muslim seats on the Supreme Court or Hindu seats or Tibetan seats or Venezuelan seats or LGBTQ seats or atheist seats? (For the record, this American Jew never supported the notion that there should be a “Jewish seat.”) When any such groups become big chunks of the U.S. population, and can credibly point to current or only recently ended discrimination, taking their members as such into account should become a significant (background) element of the process of choosing leaders.  But not until then.

If the above thinking and recommendations sound kind of muddled and fuzzy, that’s because in a sense they are. As known with anyone with any management experience, and as suggested above, sound personnel decisions can’t simply rely on hard-and-fast systems or formulae. When evaluating human beings, too many intangibles and other subjective factors that can’t readily be quantified – if at all – need to be assessed, too,

The same goes for expectations of decision-makers and efforts to judge them with neat and clean scorecards. Supporters of further progress toward more representation in top government and other leaders should therefore realize that these matters should be governed by the “less said, the better” principle, and that rather than impose on politicians and others involved in high profile appointments and hirings rigid identity politics-based standards, they should focus on ensuring that these decision-making slots are occupied by figures with long, proven records of expanding opportunity, and trust them to do the right thing.

Just as important, the less commotion raised about race, ethnicity, gender, and the like in these appointment and hiring episodes, the more confidence fair-minded Americans will be that sound judgments about merit really are in the driver’s seat. And isn’t that what most of even the staunchest backers of greater identity equity, along with their compatriots in general, have ultimately sought from the beginning?        

Im-Politic: Trump-ism Without Trump for America as a Whole?

Tags

"Defund the Police", allies, CCP Virus, China, climate change, coronavirus, court packing, COVID 19, Democrats, election 2020, enforcement, Executive Orders, filibuster, Green New Deal, Huawei, human rights, Im-Politic, Immigration, Joe Biden, judiciary, lockdowns, mask mandate, masks, metals, multilateralism, Muslim ban, Phase One, progressives, Republicans, sanctions, Senate, shutdowns, stimulus, Supreme Court, tariffs, taxes, Trade, trade wars, Trump, unions, Wuhan virus

Since election day, I’ve spent some time and space here and on the air speculating about the future of what I called Trump-ism without Donald Trump in conservative and Republican Party political ranks. Just this weekend, my attention turned to another subject and possibility: Trump-ism without Mr. Trump more broadly speaking, as a shaper – and indeed a decisive shaper – of national public policy during a Joe Biden presidency. Maybe surprisingly, the chances look pretty good.

That is, it’s entirely possible that a Biden administration won’t be able to undo many of President Trump’s signature domestic and foreign policies, at least for years, and it even looks likely if the Senate remains Republican. Think about it issue-by-issue.

With the Senate in Republican hands, there’s simply no prospect at least during the first two Biden years for Democratic progressives’ proposals to pack the Supreme Court, to eliminate the Senate filibuster, or to recast the economy along the lines of the Green New Deal, or grant statehood Democratic strongholds Puerto Rico and the District of Columbia. A big tax increase on corporations and on the Biden definition of the super-rich looks off the table as well.

If the Senate does flip, the filibuster might be history. But big Democratic losses in the House, and the claims by many veterans of and newcomers to their caucus that those other progressive ambitions, along with Defunding the Police, were to blame, could also gut or greatly water down much of the rest of the far Left’s agenda, too.

CCP Virus policy could be substantially unchanged, too. For all the Biden talk of a national mask mandate, ordering one is almost surely beyond a President’s constitutional powers. Moreover, his pandemic advisors are making clear that, at least for the time being, a sweeping national economic lockdown isn’t what they have in mind. I suspect that some virus economic relief measures willl be signed into law sometime this spring or even earlier, but they won’t carry the total $2 trillion price tag on which Democratic House Speaker Nancy Pelosi seems to have insisted for months. In fact, I wouldn’t rule out the possibility of relief being provided a la carte, as Congressional Republicans have suggested – e.g., including popular provisions like some form of unemployment payment bonus extension and stimulus checks, and excluding less popular measures like stimulus aid for illegal aliens.

My strong sense is that Biden is itching to declare an end to President Trump’s trade wars, and as noted previously, here he could well find common cause with the many Senate Republicans from the party’s establishment wing who have never been comfortable bucking the wishes of an Offshoring Lobby whose campaign contributions it’s long raked in.

Yet the former Vice President has promised his labor union supporters that until the trade problems caused by China’s massive steel overproduction were (somehow) solved, he wouldn’t lift the Trump metals tariffs on allies (which help prevent transshipment and block these third countries from exporting their own China steel trade problems to the United States) – even though they’re the levies that have drawn the most fire from foreign policy globalists and other trade and globalization zealots.

As for the China tariffs themselves, the latest from the Biden team is that they’ll be reviewed. So even though he’s slammed them as wildly counterproductive, they’re obviously not going anywhere soon. (See here for the specifics.) 

Later? Biden’s going to be hard-pressed to lift the levies unless one or both of the following developments take place: first, the allied support he’s touted as the key to combating Beijing’s trade and other economic abuses actually materializes in very convincing ways; second, the Biden administration receives major Chinese concessions in return. Since even if such concessions (e.g., China’s agreement to eliminate or scale back various mercantile practices) were enforceable (they won’t be unless Biden follows the Trump Phase One deal’s approach), they’ll surely require lengthy negotiations. Ditto for Trump administration sanctions on China tech entities like the telecommunications giant Huawei. So expect the Trump-ian China status quo to long outlast Mr. Trump.

Two scenarios that could see at least some of the tariffs or tech sanctions lifted? First, the Chinese make some promises to improve their climate change policies that will be completely phony, but will appeal greatly to the Green New Deal-pushing progressives who will wield much more power if the Senate changes hands, and who have demonstrated virtually no interest in China economic issues. Second, Beijing pledges to ease up on its human rights crackdowns on Hong Kong and the Muslims of Xinjiang province. These promises would be easier to monitor and enforce, but the Chinese regime views such issues as utterly non-negotiable because they’re matters of sovereignty. So China’s repressive practices won’t even be on the official agenda of any talks. Unofficial understandings might be reached under which Beijing would take modest positive steps or suspend further contemplated repression. But I wouldn’t count on such an outcome.

Two areas where Biden supposedly could make big decisions unilaterally whatever happens in the Senate, are immigration and climate change. Executive orders would be the tools, and apparently that’s indeed the game plan. But as Mr. Trump discovered, what Executive Orders and even more routine adminstrative actions can do, a single federal judge responding to a special interest group’s request can delay for months. And these judicial decisions can interfere with presidential authority even on subjects that for decades has been recognized as wide-ranging – notably making immigration enforcement decisions when border crossings impact national security, as with the so-called Trump “Muslim ban.”

I know much less about climate change, but a recently retired attorney friend with long experience litigating on these issues told me that even before Trump appointee Amy Coney Barrett joined the Supreme Court, the Justices collectively looked askance on efforts to create new policy initiatives without legislating. Another “originalist” on the Court should leave even less scope for ignoring Congress.

The bottom line is especially curious given the almost universal expectations that this presidential election would be the most important in recent U.S. history: A deeply divided electorate could well have produced a mandate for more of the same – at least until the 2022 midterms.

Im-Politic: VP Debate Questions That Should be Asked

Tags

1619 Project, African Americans, Barack Obama, Biden, budget deficits, CCP Virus, censorship, China, Confederate monuments, Constitution, coronavirus, COVID 19, education, election 2020, Electoral College, filibuster, Founding Fathers, free speech, healthcare, history, history wars, Im-Politic, inequality, investment, Kamala Harris, Mike Pence, national security, Obamacare, police killings, propaganda, protests, racism, riots, semiconductors, slavery, spending, Supreme Court, systemic racism, Taiwan, tariffs, tax cuts, taxes, Trade, trade war, Trump, Vice Presidential debate, Wuhan virus

Since I don’t want to set a record for longest RealityChek post ever, I’ll do my best to limit this list of questions I’d like to see asked at tonight’s Vice Presidential debate to some subjects that I believe deserve the very highest priority, and/or that have been thoroughly neglected so far during this campaign.

>For Vice President Mike Pence: If for whatever reason, President Trump couldn’t keep the CCP Virus under control within his own White House, why should Americans have any faith that any of his policies will bring it under control in the nation as a whole?

>For Democratic candidate Senator Kamala Harris: What exactly should be the near-term goal of U.S. virus policy? Eliminate it almost completely (as was done with polio)? Stop its spread? Slow its spread? Reduce deaths? Reduce hospitalizations? And for goals short of complete elimination, define “slow” and “reduce” in terms of numerical targets.

>For Pence: Given that the administration’s tax cuts and spending levels were greatly ballooning the federal budget deficit even before the virus struck, isn’t it ridiculous for Congressional Republicans to insist that total spending in the stimulus package remain below certain levels?

For Harris: Last month, the bipartisan Congressional Problem Solvers Caucus unveiled a compromise stimulus framework. President Trump has spoken favorably about it, while stopping short of a full endorsement. Does Vice President Biden endorse it? If so, has he asked House Speaker Nancy Pelosi to sign on? If he doesn’t endorse it, why not?

For Pence: The nation is in the middle of a major pandemic. Whatever faults the administration sees in Obamacare, is this really the time to be asking the Supreme Court to rule it un-Constitutional, and throw the entire national health care system into mass confusion?

For Harris: Would a Biden administration offer free taxpayer-financed healthcare to illegal aliens? Wouldn’t this move strongly encourage unmanageable numbers of migrants to swamp U.S. borders?

For Pence: President Trump has imposed tariffs on hundreds of billions of dollars’ worth of Chinese exports headed to U.S. markets. But U.S. investors – including government workers’ pension funds – still keep sending equally large sums into Chinese government coffers. When is the Trump administration finally going to plug this enormous hole?

For Harris: Will a Biden administration lift or reduce any of the Trump China or metals tariffs. Will it do so unconditionally? If not, what will it be seeking in return?

For both: Taiwan now manufactures the world’s most advanced semiconductors, and seems sure to maintain the lead for the foreseeable future. Does the United States now need to promise to protect Taiwan militarily in order to keep this vital defense and economic knowhow out of China’s hands?

For Pence: Since the administration has complained so loudly about activist judges over-ruling elected legislators and making laws themselves, will Mr. Trump support checking this power by proposing term limits or mandatory retirement ages for Supreme Court Justices? If not, why not?

For Harris: Don’t voters deserve to know the Biden Supreme Court-packing position before Election Day? Ditto for his position on abolishing the filibuster in the Senate.

>For Pence: The Electoral College seems to violate the maxim that each votes should count equally. Does the Trump administration favor reform? If not, why not?

>For Harris: Many Democrats argue that the Electoral College gives lightly populated, conservative and Republican-leaning states outsized political power. But why, then, was Barack Obama able to win the White House not once but twice?

>For Pence: Charges that America’s police are killing unarmed African Americans at the drop of a hat are clearly wild exaggerations. But don’t you agree that police stop African-American pedestrians and drivers much more often than whites without probable cause – a problem that has victimized even South Carolina Republican Senator Tim Scott?

For Harris: Will Biden insist that mayors and governors in cities and states like Oregon and Washington, which have been victimized by chronic antifa violence, investigate, arrest and prosecute its members and leaders immediately? And if they don’t, will he either withhold federal law enforcement aid, or launch such investigations at the federal level?

For Pence: Why should any public places in America honor Confederate figures – who were traitors to the United States? Can’t we easily avoid the “erasing history” danger by putting these monuments in museums with appropriate background material?

For Harris: Would a Biden administration support even peacefully removing from public places statues and monuments to historic figures like George Washington and Thomas Jefferson because their backgrounds included slave-holding?

For both: Shouldn’t voters know much more about the Durham Justice Department investigation of official surveillance of the Trump campaign in 2015 and 2016 before Election Day?

For both: Should the Big Tech companies be broken up on antitrust grounds?

For both: Should internet and social media platforms be permitted to censor any form of Constitutionally permitted speech?

For Pence: Doesn’t the current system of using property taxes to fund most primary and secondary public education guarantee that low-income school children will lack adequate resources?

For Harris: Aren’t such low-income students often held back educationally by non-economic factors like generations of broken families and counter-productive student behavior, as well as by inadequate school funding – as leading figures like Jesse Jackson (at least for one period) and former President Obama have claimed?

For Pence: What’s the difference between the kind of “patriotic education” the President says he supports and official propaganda?

For Harris: Would a Biden administration oppose local school districts using propagandistic material like The New York Times‘ U.S. history-focused 1619 Project for their curricula? Should federal aid to districts that keep using such materials be cut off or reduced?

Now it’s your turn, RealityChek readers! What questions would you add? And which of mine would you deep six?

Making News: Podcast Now On-Line of Last Night’s NYC Radio Appearance

Tags

court packing, FBI, filibuster, Frank Morano, Kamala Harris, Making News, Mike Pence, rock music, Supreme Court, The Other Side of Midnight, Trump-Russia, Vice Presidential debate, WABC AM, Yankees

I’m pleased to announce that the podcast is now on-line of my appearance last night on Frank Morano’s “The Other Side of Midnight” program on New York City’s WABC-AM radio station. For a – really – wide-ranging discussion encompassing tonight’s Vice Presidential debate, the Supreme Court, rock music, the economy, the latest revelations about FBI misdeeds, and of course the Yankees, click here and then on the “Staten Island” link. My segment beings at about the 20:30 mark.

And keep checking in with RealityChek for news of upcoming media appearances and other developments.

Im-Politic: The Supreme Court Mess II

Tags

Antonin Scalia, Constitution, diversity, Federal Reserve, identity politics, Im-Politic, Joe Biden, Robert Bork, Ruth Bader Ginsburg, Senate, Supreme Court, term limits, Trump

Since the Supreme Court Mess that I analyzed yesterday really is a Supreme Court Mess and not simply a Ruth Bader Ginsburg Mess, today let’s dive right into problems with how Americans deal with the top of the federal government’s judiciary branch other than the means of picking the late Justice’s replacement.

First and maybe most obvious comes an inconsistency in the position of the Democrats and especially of their presidential nominee this year, former Vice President Joe Biden. From that party and candidate comes the insistence that it’s wrong for President Trump to choose a new Justice so close to the November election because it could strap the country with a new Justice and Court line-up that flout the popular will that would be revealed by a Biden win on major policy issues (like abortion or the future of Obamacare).

Leaving aside the (clear un-) Constitutionality of this position, it’s not entirely unreasonable. But it would become much stronger substantively, and much less vulnerable to charges of hypocrisy and pure partisanship, if Biden enabled voters to assess their actual Supreme Court-related choices at least as clearly as Mr. Trump has with the list of Ginsburg replacement possibilities he’s released. Biden has promised that he’d put forward an African American woman (though maybe not this time?). But which ones is he considering (if it is this time)? He hasn’t told us. So the criterion of fairness should oblige him to release his own list ASAP, to permit voters to weigh the alternatives fully. After all, even if they don’t like any of the Trump candidates (which the President has subsequently announced will be restricted to women), Americans might like Biden’s choices even less.

The second problem, though, has precisely to do with the identity politics of Supreme Court nominations that both Biden and the President are practicing. Not that I have any inherent objection to another female Justice or the first African American female Justice. But these announcements raise any number of divisive questions that Americans could do without in these divisive times. Just a few examples:

>During the Obama years, there was much talk that the Court needed an Asian-American Justice. (Full disclosure: Denny Chin, the federal appeals court judge mentioned here, is a college friend.) So many valid reasons were cited (e.g., they’re “the fastest growing population of color in the country, with a voting electorate expected to double in the next 25 years”). Exactly when, therefore, did this proposal become obsolete? And why?

>Regarding the Biden pledge to nominate an African American woman, that would move the Court’s makeup closer to the gender composition of the entire U.S. population, so this promise can be justified by the goal of making the Court “look like America.” (So would the President’s promise to choose a woman whose race or ethnic background he hasn’t specified.) But an African American woman would bring the number of African Americans on the Court to two (along with Clarence Thomas). Since they amount to only some 13 percent of all Americans, they’d be way over-represented.

>The same outcome would result from if Mr. Trump picks Cuban-American federal appeals court judge Barbara Lagoa from Florida. She’d be the second Latino woman on the Court (along with Sonia Sotomayor). But that decision would create another over-representation situation (though not one as sizable as those for African Americans, at least in the early part of a Biden administration). And what about Latino men? They’d remain completely shut out. How come?

Again, I agree broadly with the idea that the leadership ranks of major American institutions, especially public, but also private, should be diverse enough in terms of all the major population categories to make sure that the widely varying experiences of these groups contribute to decision-making. In my view, that’s a major plus, since the idea of objectively optimal policies or practices is impossibly naive, and because the choices made by public institutions are bound to affect different groups differently.

But although all these stakeholders deserve a say, when diversity – and especially specific diversity formulas – become explicit, you unfortunately enter a world in which the kinds of potentially ugly identity politics-related questions just mentioned tend to come to the fore, and vital issues of merit tend to move to the rear.

As a result, though doing so is somewhat hypocritical, certain kinds of fictions do serve important purposes. So I hope that from now on, diversity promises for public appointments at least become less explicit, and the results become the product of informal political pressures and other considerations. (Privately owned institutions should be able to do whatever they want within the bounds of anti-discrimination laws. Even so, diversity can benefit them, too, since especially in the case of businesses, they’re trying to win and keep customers, and diverse leadership ranks are likely to provide important insights into appealing to various population groups.)

The third big part of the Supreme Court Mess: The American political system clearly has moved way too far away from the crucial idea that, since elections matter, Presidents have the right to appoint whoever they wish to fill positions the Constitution entitles them to fill unless their choices are flagrantly incompetent, or utterly dismissive of Constitutional and ther legal standards, or ethically or criminally compromised. If Senators simply don’t agree with nominees on legitimate Constitutional and legal controversies – too bad.

Thankfully, this idea isn’t completely dead. For example, three Democrats did vote to approve Trump Supreme Court nominee Neil M. Gorsuch in April, 2017. At the same time, three isn’t much. Vastly more encouraging: In August, 1993, Ginsburg was confirmed by a 96 to 3 vote (one Senator abstained), which means that plenty of Republicans supported here even though she surely wasn’t their legal and Constitutional cup of tea.

At the same time, Republicans controlled the Senate when Gorsuch was considered, and Democrats enjoyed a majority when Ginsburg came up. So a better example of this ideal would be the 1990 vote in favor of David H. Souter. He was a George H.W. Bush nominee, yet won the nod of a Democratic Senate – in a 90-9 landslide. (This time, one Senator didn’t vote.) 

Or was it? After all, Souter arguably received this margin precisely because his views on major subjects were so unknown – largely because his lower court opinions and other legal writings were so plain vanilla or so scarce or both. As widely (and convincingly) supposed, Souter (and his supporters) had learned the big lesson of the failed nomination of Robert Bork: Don’t leave a conspicuous “paper trail.”

Bork, whose bid for the Court failed in 1987, was rejected by a Democratic-controlled Senate largely because his prodigious writings were so controversial. His reputation as a Watergate-era villain surely didn’t help, either.

But were Bork’s views so out of the mainstream, as his opponents charged? Just a year earlier, another doctrinaire judicial conservative nominated by President Ronald Reagan – Antonin Scalia – was elevated to the Court. And he won unanimously. (Two Senators didn’t vote.)  But that year, Republicans ran the upper chamber.

As a result, it’s easy to conclude that the tradition of “Borking” is very much alive, and that overly political Supreme Court nomination fights will continue for the time being.

The final big aspect of the Supreme Court mess: This drift away from the respect for legitimate presidential prerogatives no doubt results from both the prominent role the Court has played in deciding issues (like Obamacare) that elected politicians should be figuring out, and this prominence, and the towering stakes thereby created, in turn stem from the lifetime nature of Court terms. In other words, once a Justice is confirmed, he or she can serve literally for decades, and for just as long decisively influence policy decisions that shouldn’t be legalized.

Therefore, although I’m super-hesitant to support Constitutional changes in response to developments that are probably transient, I fear that the too often vicious and hyper-partisan nature of American politics is here to stay for the foreseeable future.  Therefore, I’d support at least considering an amendment that would limit the Justices’ terms.  One possible model: the Federal Reserve, another government body that’s supposed to be shielded from politics, and whose seven Board members serve for fourteen years, and whose Chair and Vice Chair are limited to four (although this curb doesn’t count against their Board service).

Not that I love the Fed’s degree of autonomy.  But the temperature of national politics clearly needs to be lowered to safer levels, and term limits on the increasingly supremely powerful Supreme Court are the best place to start I can think of.     

Im-Politic: The Supreme Court Mess I

Tags

Antonin Scalia, Barack Obama, Biden Rule, conservatives, Constitution, Democrats, election 2020, elections, Ginsburg, Im-Politic, Joe Biden, lame duck Congress, liberals, Merrick Garland, Mitch McConnell, Republicans, rule of law, Ruth Bader Ginsburg, Senate, Supreme Court, Trump

I call this piece “The Supreme Court Mess I” rather than “The Ginsburg Mess I” because the fix in which the nation finds itself regarding the replacement of the late Supreme Court Justice Ruth Bader Ginsburg reflects a number of much deeper problems America is suffering. These stem from the firestorm-like nature of some recent battles over the roster of this nearly (but not quite paramount) arbiter of the Constitution, which makes it a the nearly last word regarding the entire U.S. legal system and its often decisive, lasting effects on every dimension of American life. (The Roman numeral tells you that there will be another post on this subject coming real soon, probably tomorrow.)

Today we’ll focus on the immediate question at hand: whether the Senate should vote on President Trump’s nominee for a new Justice. To me, the only answer with any merit: Absolutely. Indeed, nothing could be stronger, and more important to affirm, than the conclusion that any President has every right to nominate a new Justice at any time during any of his or her terms in office (i.e, through Inauguration Day, January 20), and that the Senate has every right to vote on his choice during this time. Why? Because it’s what the Constitution says, and neither the Framers nor any American leaders have ever formally tried to change the system since 1789. That is, there are no exceptions made – including for presidential election years, as many Democrats are calling for now.

If you think about it non-hysterically, you can see why. Abandoning this standard opens the door to the kind of bizarrely and indeed laughably convoluted and self-serving case being made now by Republican Senate Majority Leader Mitch McConnell of Kentucky to explain why (a) he’s decided to allow a vote on a Supreme Court nominee this presidential election year, but (b) refused to allow former former President Obama’s appointment of Supreme Court nominee Merrick Garland be considered during the previous presidential election year.

According to McConnell, the governing principle for Court nominations is the result of the latest Senate election. As he wrote right after Ginsburg’s passing:

“In the last midterm election before Justice [Antonin] Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.

“By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, To

To which the only serious reaction has to be “Seriously”? Not only is this position even further from the Constitutional standard than the presidential carve-out position. If it’s followed, it’s easy to see how other unscrupulous politicians could use even more arbitrary maxims like this to completely paralyze the Supreme Court nomination process.

After all, if it’s the Senate’s makeup that counts most of all, then why not bar nominations during the run-up to such elections – which of course take place every two years (when a third of the Senate faces reelection). For by McConnell’s logic, it wouldn’t be possible to know the people’s will on such matters for certain until those Senate results are in. And how would anyone define “run-up”? A month? Two? Six? A full year? On what objective basis could anyone distinguish among these possibilities? The only reasonable answer? None.

Lest you want to blame Republicans alone for this kind of sophistry, keep in mind that its origins lie in the so-called “Biden Rule” – when in 1992, the former Vice President and current Democratic presidential nominee argued that “once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.” And in an example of poetic justice, McConnell and many other Republicans and conservatives cited this reasoning to justify their own Supreme Court positions when former President Barack Obama in March, 2016 nominated senior federal judge Merrick Garland to fill the seat left by Scalia’s death in February.

Three final observations: First, any number of politicians and pundits are citing various supposed historical traditions for justifying their stances on election year Supreme Court votes. (See here for Republicans and conservatives, and here for Democrats and liberals.) To which I can only say, “Tradition, shmadition.” As indicated above, although interpretation is possible and often needed for all laws and many Constitutional provisions, when the latter set out clearcut procedures – as for the nomination and approval of Supreme Court Justices (but not so much for impeachment) – Americans drift away from them at their peril. If you don’t like these procedures, then use the amendment process of the Constitution to change them, rather than pretending that traditions and non-legal precedents and other practices are adequate substitutes.

Second, equally ludicrous and even more dangerous is the claim that the nation’s current divided circumstances justify waiting until after the presidential election to fill the Ginsburg seat. That’s essentially warning that violence may erupt if the President and Senate exercise their Constitutional prerogatives, and in effect supporting a surrender to the threat of mob rule.

It’s absolutely true that practically all decisions made by political leaders – elected and unelected alike – are at least partly political in nature, and can profoundly affect the national interest short term and long term. It’s entirely legitimate, therefore, and even important for President Trump to take into account in his Ginsburg approach non-Constitutional considerations.

But it’s something else entirely, and far more dangerous, to contend that such judgment calls are or should in any way be legally binding. As with federal government personnel choices, Constitutional procedures can be used to protest and overturn presidential or other decisions that are entirely legal but unpopular for whatever reason. They’re called elections, and Americans would do far better to focus on taking all (legal) steps to ensure that their candidates and viewpoints prevail, rather than dreaming up spur-of-the-moment rationalizations for ignoring settled law that may create momentary advantages, but that contain equal backfire potential, and that can only erode the rule of the law to everyone’s ultimate detriment.

Third, my only strong preference in this matter is that a Senate Supreme Court vote not take place during a lame duck session – which would be convened after the presidential election. That’s because a possibly decisive number of Senators who would be considering the nomination would be Senators who have been voted out of office. What an offense to the idea of representative government that would be! At the same time, it’s only my preference. These sessions themselves are entirely legal, and I’m not about to claim that my views should substitute for Constitutional procedures.