As anyone who reads these pages is aware, I have been – along with President Trump and apparently the rest of America’s political junkies – taken with polls.  At the time this is typed, FiveThirtyEight.com (538) shows former Vice President Joe Biden with a lead in every swing state I’ve obsessed upon during the last year, with a lead above 5 points in all three of the Upper Midwest states in which Mr. Trump eked out his 2016 victory.  I will be fascinated to see how closely 538’s findings on the morning of Election Day square with the battleground states’ final results.  I expect that Mr. Biden’s final 538 swing state margins over Mr. Trump will differ from the candidates’ final swing state vote totals, for two reasons: 

First, the Democrats’ substantive and political approach to the Coronavirus has necessarily required them to rely heavily on what in some states have heretofore been “non-traditional” voting methods – mail in, early drop-off, etc. – which seems likely to result in a proportionately greater number of Democratic than Republican votes being rejected for legitimate (and in some cases, illegitimate) reasons.

The second is more fundamental:  the reluctance by some poll respondents to admit that they support the President.  In a past note, I discounted that factor; now, I’ve tentatively concluded that there is indeed an “undervote” that will lift Mr. Trump (to what extent remains to be seen).  I’ve changed my mind because by all objective measures, the President should be trailing by much more than he is.  When pundits bore down into polling results, they note that while Mr. Trump is usually found to lead Mr. Biden narrowly in “the Economy,” he loses to Mr. Biden by notable margins in areas such as, “He cares about people like me,” “Handling the Coronavirus,” “Healthcare,” “Protecting Social Security and Medicare,” “Maintaining America’s Place in the World,” “Addressing Climate Change,” “Environmental Policy,” even – surprisingly – “Maintaining Law and Order.”

I fear that the dichotomy lies in what Mr. Trump has proven to us:  Emotion trumps [if you will ;)] reason.  Rationalists (which, at least in this context, apparently include me) fail to appreciate this. I would venture that if approached in a way that eliminates partisan overlay, many of the President’s supporters would prefer Mr. Biden’s substantive policies to Mr. Trump’s.  I suggest that the polls don’t accurately reflect the deep affinity that a large share of Americans have for Mr. Trump because pollsters don’t ask the right questions (and to which they wouldn’t get a full share of accurate answers even if the respondents are willing to admit it to themselves):

Yes or No:  Are you angry that your life hasn’t turned out as well as you expected?

Yes or No:  Do you believe that America should be white, Christian, and straight?

Yes or No:  Do you just want things to be … the way they always were?

For some, all three questions conjure images of a golden homogeneous carefree past, where everything made sense … that actually never was.  Put aside that we shouldn’t go back; we can’t. Former President Bill Clinton, whom I consider the most gifted politician of my lifetime, famously said, “Elections are about the future.”  I would submit that the outcome of this one will indicate whether we are ready to meet the opportunities and challenges of our future — one of the qualities that actually made America great — or are determined to drown in misshapen memories of our past.

There is a link below to a truly remarkable piece.  Hopefully, if you don’t have an online subscription to the Washington Post, its technology will still allow you to access it.

https://www.washingtonpost.com/magazine/2020/10/26/gene-weingarten-divided-country-healing/?arc404=true

If polls are to be believed, President Trump’s standing has fallen sharply among seniors.  Commentators have generally attributed Mr. Trump’s apparent loss of senior support to his mishandling of our Coronavirus response.  If he has indeed lost senior support, I wonder whether it doesn’t have more meaning than that:  while COVID has brought into stark relief Mr. Trump’s incompetence and disregard for seniors’ safety, it has also caused seniors to confront the sheer lunacy of his presidency.  Seniors remember when the president, even if you disagreed with his particular policies, at least … made sense.  While Bernie, Elizabeth, or Pete might have conjured up fears of continued craziness, Joe Biden offers the prospect of … sanity.  Even if some fellow seniors don’t share my deep abhorrence for the president’s lies, bullying, racism, and dictatorial inclinations, I suspect that many share my attendant wish for a stop to the noise and the craziness.

I’m fascinated that in recent days the Republicans have tried to resurrect their allegations about … wait for it … former U.S. Secretary of State Hillary Clinton.  Mr. Trump has spoken about it; Vice President Pence threw in references to Sec. Clinton near the end of the Vice Presidential debate; I saw one clip in which Secretary of State Mike Pompeo assured us (complete with sardonic smile, almost diabolically rubbing his hands in glee) that he has Ms. Clinton’s allegedly deleted emails and will tell us more before the election.  This is obviously designed to elicit the Pavlovian response from the Republican faithful.  We ourselves have family members (of both genders) who get terribly exercised at the very mention of Ms. Clinton.  My reaction to Mr. Pompeo’s claim:  unless he produces a validated Clinton email which says, “I told Joe Biden that I was intentionally violating email security protocols and exposing our most sensitive information to Russia and China, and Joe said, ‘Great – Go for it!’”, what swing voter – upon whose vote the outcome of the presidential election will rest — cares anymore?  While she’s perhaps not the most likeable, I have never understood the Republican rabid Hillary Clinton fixation.  As First Lady and then Secretary of State, her responsibility was to support the policies of the sitting President.  Has there ever been a more inept national politician?  With all of the Clintons’ institutional advantages in 2008, how does one lose to a 2-year Illinois U.S. Senator, no matter how charismatic he is?  In 2016, how does one lose to … Donald Trump?  Let her rest in peace.

I haven’t been able to muster up that much interest in Judge Amy Coney Barrett’s Senate confirmation hearings or Judge Barrett’s impending ascension to the Supreme Court.  As all that read these pages are aware, I’m terribly troubled by the Republicans’ hypocrisy in thwarting Judge Garland’s Supreme Court nomination while pushing Judge Barrett’s; to me, it’s not about what the Senate had the right to do or not do, it’s about partisan Senate Republicans’ failure to honorably do what they should have done.  That said, it’s clear that Judge Barrett seems overwhelmingly likely to be confirmed.  Since she is undisputedly eminently qualified (albeit staunchly conservative) and apparently has no objective disqualifying factors such as drug addiction, I believe she should be.  I will nonetheless venture that if Mr. Biden wins the election and the Democrats gain control of the Senate, the liberal angst about Ms. Barrett’s ascension is overwrought.  Demographic and cultural mores sweeping this nation will not be held back by six conservative Justices, including the three Trump appointees, frantically trying to hold back the tide.  Public perception of the Court is no longer of robed oracles on pedestals as it was when President Franklin Roosevelt proposed his court packing plan in 1937.  Although Mr. Roosevelt’s initiative resulted in the most stinging political defeat of his career [although it didn’t stop him from being re-elected – twice – thereafter ;)], some scholars suggest that Mr. Roosevelt’s legislative overture caused “the switch in time that save nine” – conservative Justice Owen Roberts’ sudden joining with the liberal Justices to uphold New Deal positions.  I predict that independent voter support for court packing will mushroom if the Affordable Care Act is struck down or Roe v. Wade overruled.  The current conservative Justices will ultimately either accommodate their rulings to changing American sensibilities, be neutered by a legislative increase in Supreme Court seats, or depart the Court via “voluntary” retirement or impeachment.  On the other hand, if Mr. Trump is re-elected, a conservative Supreme Court majority will be among the lesser of our problems.

As the polls indicate – whether or not accurately – a potential “Blue Wave” in unlikely places such as Texas and Georgia, I wonder whether former U.S. TX Rep. Beto O’Rourke and former GA State Rep. Stacey Abrams have experienced pangs about rejecting the Democratic National Committee’s repeated requests that they run for the U.S. Senate in their respective states in 2020.  While their reluctance earlier this year was understandable – both had come off close defeats in a non-presidential election year, and presumably didn’t like their electoral prospects against apparently popular incumbent Senators in a presidential election year – arguably the enthusiasm each engendered in their narrow 2018 defeats, against a backdrop of a seemingly dramatic shift in voter sentiment brought about by Mr. Trump, might in hindsight have given either or both of them a springboard to victory.  Two years ago, everyone knew of Mr. O’Rourke and Ms. Abrams; how many can name the current Texas and Georgia Democratic Senate candidates?

A good friend recently sent me the following link to an article reporting upon the State of Wisconsin’s ongoing negotiations with Foxconn.  The arrangement touted with such fanfare in June, 2018, by President Trump, then Speaker of the U.S. House of Representatives Paul Ryan, and then WI Gov. Scott Walker is — and there is no kinder way to accurately describe it — a debacle.

https://www.theverge.com/2020/10/12/21512638/wisconsin-foxconn-tax-subsidies-lcd-factory-rejected?mkt_tok=eyJpIjoiWW1VeE1XRmlOVFprWVRWaCIsInQiOiJGVG0rSjJOdHdGelJqVjR3b2d4SWpOVGVETVRqVkVRayt1WlpQWnU4R0M5RUkxNXZUbFhSUkVSajB6RitGUEdRbkZmMlQ0RTE5a2pRaTk0QlVpOUgxRXhreG1EaThQSGtURTZ1ZEMzUzlUV25xYmIrYU1qWHFKWlBZcW5VXC83SXcifQ%3D%3D

All reports indicate that we’re going in the wrong direction on COVID.  Be careful.

A close friend, no fan of President Trump, texted me a few days ago, and said in part:

“As you know, I’m voting in person.  It’s not a political statement, but a practical statement.  The way your vote doesn’t count is screwing up filling out the ballot properly.  I know I won’t screw it up in person.”

I have also decided that I’m going to vote in person.  Although I’m at least as likely to screw up a mail-in ballot as our friend is, mine is a practical decision born of a different concern.  In a note a while back, I indicated, “I hope it won’t be necessary, but if it is, on November 3, for the country I want my children and grandchildren to live in, I will be willing to shake the hands of 20 desperately ill COVID patients and hug 20 more if that is what is required to reach a ballot box to vote against Donald John Trump.”  It’s time to back that up.  While measures that extreme probably won’t be necessary, given the malevolent manner in which Mr. Trump has sown distrust in a process which provides more of our people an opportunity to vote (an approach for which there is no credible evidence of any significant fraud having ever occurred in this country, and an approach he himself uses), the high likelihood that his lawyers will seek court orders to prematurely stop the counting of mail-in ballots in swing states such as Wisconsin, and the equally high likelihood of complicity to keep Mr. Trump in power by the bitter and resentful Republican Relics that control my state’s legislature, I refuse to be disenfranchised.  If there are but two Wisconsin votes recorded for Mr. Biden on Election Day [our friend undoubtedly being the other ;)], I want to know that one of them is mine. 

[If one intends to review this post, but has not yet read Part I (which is immediately below), I would start there  ;)]

Upon hearing of Supreme Court Justice Ruth Bader Ginsburg’s passing and my estimation that it was likely that Republicans would immediately move to fill her seat, I feared that given progressives’ capacity for uncontrolled outrage, exacerbated by Republicans’ inexcusable refusal to act on President Obama’s nomination of Judge Garland four years ago, progressives wouldn’t be able to contain themselves.  In a random sampling of liberal outlets over the weekend, there appeared wall-to-wall liberal apoplexy about Republicans’ filling Justice Ginsburg’s seat.  I would suggest that such frenzy is counterproductive.  Bob Woodward reports in his book, Rage, that Presidential Advisor and Trump son-in-law Jared Kushner’s “… core understanding of communication strategy … is, ‘Controversy elevates [Trump’s] message.’”  If – while it remains to be seen how big an “if” it is — Senate Republicans suffer no more than three defections in seeking to confirm Mr. Trump’s nominee, they hold the winning Senate procedural hand.  For progressives to expend undue emotional reserves on a contest that they’re likely to lose at the expense of a contest that they can win – the presidential election – is at best a political gamble and at worst, detrimental to their strategic electoral designs.

That said, there is a distinction between luxuriating in incendiary rhetoric and outwardly temperate expression (even if seething inwardly) of distress and concern with the impact another conservative Supreme Court Justice might have on American rights, and with the blatantly partisan nature of the Republicans’ maneuvers.  The Democrats’ target audience, persuadable swing voters, could be alienated if they make hyper-partisan declarations, but may well be amenable to reasoned arguments and indignation.  While Republicans will attempt to make the fight about abortion, I would offer that Democrats’ best approach will be the line that some have already adopted:  how another conservative Trump appointee might adversely impact the now widely-popular Affordable Care Act, with dispassionate commentary on the contrast between the Republicans’ refusal to proceed with Judge Garland’s nomination and their rush to judgement on the Trump nominee.  Then, get back to the Coronavirus.  They should follow the wise advice of Samuel L. Jackson’s character, Jules Winnfield, near the end of the film, Pulp Fiction:  Be cool.  I’m somewhat reassured that at least Democratic presidential nominee and former Vice President Joe Biden apparently understands this; reports indicate that he said nary a word about the Supreme Court during a recent trip to Wisconsin. 

Recent accounts indicate that the Trump Campaign is calling upon Mr. Biden to identify whom he would nominate to the Supreme Court if elected, and that Mr. Biden is rebuffing such calls.  Here, I think he is missing a golden opportunity.  He should declare that he will re-nominate Judge Garland.  I submit that such a declaration would be brilliant politically.  Progressives will grumble, but faced with the prospect of another Trump term and Trump Supreme Court nominees, will ultimately stay in line behind Mr. Biden; Mr. Garland will have the aura of having been previously nominated by Mr. Obama, providing Mr. Biden cover with his constituencies preferring a nominee of color; Mr. Biden’s naming of Judge Garland, a moderate, would destroy Mr. Trump’s argument that Mr. Biden is a tool of the “alt-left”; and Mr. Biden’s selection of Mr. Garland would seem fitting to swing state swing voters offended  by Republicans’ unfair treatment of him.  I believe that if Mr. Biden would name Judge Garland, he “wins” the Supreme Court debate with persuadable voters no matter what the Republicans do with a Trump nomination.

While political prognostication is engaging, Justice Ginsburg’s passing and the potential fallout has left me with a couple of more fundamental impressions.  The first – perhaps to the surprise of those who are aware of my obsessed keyboard frothing about Sen. Mitch McConnell’s contemptible, despicable, execrable dereliction of duty in refusing to proceed with the Senate confirmation process for Judge Garland – is that President Trump should put forth a nominee, and if, after appropriately-paced and illuminative confirmation hearings, the nominee is found to be judicially qualified and without other objective “disqualifying” factors such as drug addiction (not subjective legal views), the nominee should be confirmed.  Article II, Section 2 of the Constitution provides:  “[The President] … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme [sic] Court.”  Four years ago, I wrote U.S. IA Sen. Charles Grassley, then the Chairman of the Senate Judiciary Committee:  “I see nowhere in the [Constitution] any language limiting the President’s powers of nomination and appointment to the first three years of his/her term.”  Mr. Trump is the President.  He is within his term.  He has not just the “Power” but the duty to put forth a Supreme Court nominee.  As the late U.S. AZ Sen. John McCain once urged in another context:  Let’s return to regular order.  To me that needs to apply whether or not one finds “regular order” convenient.  As abhorrent as I find Messrs. Trump and McConnell, there is no value to enshrining the notion that a President cannot perform a vital Constitutional function a quarter of the time.  As our mothers taught us:  Two wrongs don’t make a right.

We were with good friends [at a socially-distanced outside gathering ;)] when word came of Justice Ginsburg’s death.  All felt a deep sadness both for the passing of a great American and for what it might mean for our country.  My thoughts initially drifted to the likely political ramifications of Ms. Ginsburg’s passing, but as I contemplated the fire, I considered that no issue so divides our people as does abortion — which Supreme Court nominations have come to symbolize in the public mind — and that Justice Ginsburg’s passing, coming right when it did – neither early enough in Mr. Trump’s term that progressives would ultimately emotionally reconcile themselves to another conservative Supreme Court Justice, nor after Mr. Biden’s inauguration (if such occurs), when conservatives would emotionally accept that Ms. Ginsburg would be replaced by another liberal – could violently deepen the cultural chasms already existing between us; that the impending Supreme Court nomination and confirmation process has the potential to further rip and salt our deepest wound. It is easy to presume that as her condition reached its final stages, Justice Ginsburg explored with her physicians whether there was any way to keep her medically alive through January 20.  There obviously wasn’t. Russian President Vladimir Putin couldn’t have drawn it up any better.

Notwithstanding Mr. Biden’s apparently encouraging lead in the polls, as we enter what I consider the most dangerous months for the future of our democracy since the defeat of Nazi Germany, it is difficult not to have concerns; we seem beset on so many sides. Yet, I find solace in Proverbs 3:5:  “Trust in the Lord with all your heart, on your own intelligence rely not .…”  

May we hold ourselves together.

[Comment:  These notes frequently take shape over several days.  Although I dislike regurgitating old ground, I have taken the liberty of leaving in concepts drafted before they were confirmed by subsequent events or expressed by pundits, such as the likelihood that President Trump would nominate a woman for Justice Ginsburg’s seat and the political conundrum that the Justice’s passing creates for GOP Senators such as Sen. Collins.]

I never engaged in Constitutional Law during my decades of law practice, and never developed any detailed understanding of Justice Ruth Bader Ginsburg’s jurisprudence beyond that she was a liberal icon.  What I found notable about her was the extent to which she “broke through” to the public as a woman’s rights icon and a person of grit and stamina respected across the political spectrum.  Even President Trump, who never misses an opportunity to be churlish in his description of anyone who doesn’t agree with him, was gracious in his initial comments after learning of her passing.  I’d wager that if last week, a cross section of Americans was asked to name members of the Supreme Court, the highest percentage would have mentioned Ruth Bader Ginsburg, John Roberts, and Brett Kavanaugh [I suspect that the latter would rather not be as readily remembered as he is  ;)].     

At this point, the political maneuvering is well underway.  “All politics is local” is a well-known maxim most closely associated with the late former Democratic Speaker of the U.S. House of Representatives, Thomas “Tip” O’Neill, Jr.; I would suggest that the maxim is a subtler way of saying, “All politics is personal survival.”  How Justice Ginsburg’s passing will affect individual politicians will seemingly vary greatly.  We’ll get to the President in a minute.   

First, the easiest:  Republican Senate Majority Leader Mitch McConnell.  The play for Sen. McConnell – or if you prefer, Moscow Mitch, The Man of Many Chins, or The Evil Weasel — is obvious:  push the nomination through.  Mr. McConnell views the conservative stacking of the federal judicial system as his legacy.  He has no qualms about fairness or decorum.  He undoubtedly realizes that this could be his last chance to put another conservative on the Supreme Court.  Even so, perhaps the most important point for him:  despite the egregious hypocrisy involved in proceeding with efforts to confirm any Trump nominee given his thwarting of former President Barack Obama’s nomination of U.S. Court of Appeals Judge Merrick Garland four years ago, I’ll venture that the majority of Kentuckians will approve of his moving forward.  Such an approach may well seal his victory in his 2020 U.S. KY Senate race.  At a guess perhaps born of northern ignorance, an aggressive Republican move also seems to help Republican Sens. Lindsey Graham (SC), Thom Tillis (NC), and Sonny Perdue (GA) in their tighter-than-expected races.

At the other end of the spectrum is U.S. ME Sen. Susan Collins and perhaps other Republican Senators in close races in more moderate states, such as Republican Sens. Martha McSally (AZ), Cory Gardner (CO), and Joni Ernst (IA).  None will win without rabid support among committed conservatives but perhaps can’t win without some support from moderates who may be offended by a blatantly political Republican move to cram a nominee into Ms. Ginsburg’s seat. Calls by Sen. Collins and her friend, U.S. AK Sen. Lisa Murkowski, to delay any Senate confirmation vote until after Election Day demonstrate that they understand that the upcoming process places Sen. Collins in acute political peril. The decision by Messrs. Trump and McConnell to proceed — although it arguably reduces their odds of maintaining a Republican Senate majority in January — simply confirms that at bottom, all politics is … personal survival.

As to the President:  He has already indicated that he intends to send a nominee to the Republican-controlled Senate in short order.  The nominee will undoubtedly be an avid cultural conservative and pro-life advocate.  I’ll be shocked if it’s not a woman; the Trump Administration will attempt to defuse by at least a bit the feminist ire that would result from women “losing” a seat on the Court.  No matter whom the President chooses, going forward with the nomination is the obvious play for him.  He would absolutely grievously offend and lose vital support among evangelicals and cultural conservatives if he doesn’t proceed.  The beauty of this from his perspective – although he has already proven too ham-handed to take advantage of it – is that he could have gained political advantage for himself – all he cares about – and while seemingly sticking to the high ground:  a Supreme Court Justice has died; he’s President; he’s going to put forth a nominee to fill the seat, as the Constitution requires; he had no part in the Senate’s lack of action on the Garland nomination; what the Senate does with his nomination is up to the Senate.  Since he isn’t subtle enough to stick to that tack, Mr. Trump could well lose some swing state suburban moderates who may be concerned that an unfairly partisan rushed confirmation process will endanger pro-choice and health care protections, but this is obviously an electoral risk he intends – and from the standpoint of his cold political need for staunch religious conservative support, has — to take.

All that said, I would submit that the most important political advantage the nomination provides Mr. Trump:  every day the discussion is about the Supreme Court and not about the Coronavirus is a good political day for him.

In an effort to keep these posts to at least a somewhat manageable length, what remains of this note will appear in Part II.

Other obligations have limited the time I’ve had to devote to these pages in recent days, but I want to note the video posted yesterday by Olivia Troye, attached below.  There are now so many “tell-all” accounts regarding President Trump that they no longer seem worth noting [I declare as I’ve spent some time going through Bob Woodward’s book, Rage ;)]; to borrow from the Lord, all that have ears to hear regarding the President’s malign character and blatant incompetence … have already heard.  Even so, I want to echo what I’ve seen a couple of others note:  Ms. Troye, a lifelong Republican who until recently served as Homeland Security and Counter-terrorism Advisor to Vice President Mike Pence and Mr. Pence’s lead staff member on the COVID-19 response, is, out of love of our nation, risking what has been shaping up to be a noteworthy career to speak out about Mr. Trump’s manifest unfitness for the presidency.  Her courage is of the type shown by Lt. Col. Alexander Vindman and others who might be described as “just regular public servants,” and puts to shame all of the gutless current Republican officeholders who know – who know – that the President is unfit, people such as former Speaker of the House of Representatives Paul Ryan who ran from the field with their tails between their legs rather than speak out about the President, and most particularly … her former boss, Vice President Pantywaist.  The selfless courage of Americans such as Ms. Troye provide our greatest hope for the future.